ON 



CIVIL LIBERTY 



AND 



SELF-GOVERNMENT. 



BY 

FRANCIS LIEBER, LL.D., 

CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE, ETC. ; 

AUTHOR OF "POLITICAL ETHICS," " PRINCIPLES OF LEGAL AND POLITICAL INTERPRETATION, 

ETC., ETC. 



THIRD EDITION, REVISED. 



EDITED BY THEODORE D. WOOLSEY. 



PHILADELPHIA: 

J. B. LIPPINCOTT & CO. 

LONDON: TRUBNER & CO. 
I8 74 . 




t<3u*0 Q&X 



fr& 




Entered, according to Act of Congress, in the year 1874, by 
MATILDA LIEBER, 

In the Office of the Librarian of Congress at Washington. 



TO 

HIS FORMER PUPILS 

THIS VOLUME 

is 
INSCRIBED 

IN KIND REMEMBRANCE 

BY THE AUTHOR. 



INTRODUCTION 



TO 



THE THIRD EDITION. 



The first edition of " Civil Liberty and Self-Government" 
was published in 1853, when Dr. Lieber was a professor in 
the University of South Carolina ; the second, enlarged by 
notes and corrected, appeared in 1859, two y ears after he had 
accepted a chair in Columbia College, New York. The second 
edition was exhausted when he died, October 2, 1872; and if 
he had lived, he would, I think, have prepared a third edition, 
for the work had come pretty extensively into the hands both 
of college students and of mature men of literary culture. But 
the last years of Dr. Lieber's life, after the war, with the duties 
and studies which it laid upon him, was over, were occupied 
with other literary work. And so there has been for some 
time an important gap in the works which can be recom- 
mended to the student of political science. The author of 
this preface was requested by the family of Dr. Lieber to 
undertake the office of preparing both the " Civil Liberty and 
Self-Government," and the " Political Ethics," for a new edi- 
tion. The former, as being most in demand, it was thought 
best to get in readiness for the press first; the other, it is 
probable, will be given to the public after no very long 
interval. 

The writer of these lines had long been familiar with this 
work. Soon after its appearance, he wrote a somewhat extended 
review of it, in which he spoke with plainness, perhaps with 
undue emphasis, of certain minor inaccuracies in the first 

5 



6 INTRODUCTION TO THE THIRD EDITION. 

edition, which had escaped its author's notice. But the review 
was the means of bringing him into acquaintance, and after- 
wards into friendly relations, with Dr. Lieber : perceiving the 
merits of the work, and its suitableness for the wants of young 
men in the United States, he was the first, or among the first, 
to recommend it to students, so that as early as 1854 or 1855 
he put it into the hands of his pupils in Yale College. And he 
has had very good reason to believe that the general effect of 
the work upon young men has been of the most salutary kind. 

The work now appears in all important particulars as the 
author left it. A few slight corrections haftre been silently 
introduced into the text ; the notes have received additions 
where explanations of the text seemed to be required, and 
where the progress of events threw light on the author's views. 
One or two notes are put in the place of notes in the last 
edition, for special reasons, which are indicated in the notes 
themselves. These changes and additions, in all but few, are 
denoted by brackets. On the whole, while the work has been 
carefully examined, the amount of alterations has been very 
small, and throughout nothing is obtruded on the author. 

It would be a grateful task to speak at length here of the 
services which Dr. Lieber rendered to political science in this 
country. But we must refer our readers to the charming sketch 
of his life and character, given by his friend Judge M. Russell 
Thayer in an address before the Historical Society of Pennsyl- 
vania. He was indeed the founder of this science in this country, 
in so far as by his method, his fulness of historical illustration, 
his noble ethical feeling, his sound practical judgment, which 
was of the English rather than of the German type, he secured 
readers among the first men of the land, influenced political 
thought more than any one of his contemporaries in the United 
States, and made, I think, a lasting impression on many 
students who were forming themselves for the work of life. 
Severely scientific he could not be called; he was sometimes a 
little verbose, and his abundant stores of knowledge and read- 
ing were poured profusely out on his readers ; but I am not 
sure that a writer so full of illustration, so transparent in his 



INTRODUCTION TO THE THIRD EDITION 7 

feelings, and with so little reserve, is not the fittest to leave a 
genial remembrance and a happy impression in the minds of 
the largest number of men. 

Dr. Lieber's vicissitudes of life were of a kind to cultivate in 
him practical judgment concerning political matters. Sharing 
in his early youth in that inspiration of patriotism which 
drove so many young Germans into the field, and partaking 
of the toils of the Waterloo campaign, during which, at the 
battle of Namur, he was wounded; then returning to his 
native city, Berlin, to fall under the suspicion of the govern- 
ment on account of his connection with the ardent patriot 
Jahn ; next, after his graduation at Jena, making his way into 
Greece, as a volunteer in the cause of Greek independence; 
thereupon, disappointed and destitute, taking refuge in Italy, 
where the historian Niebuhr invited him to act as tutor of his 
son ; then returning into Prussia with promises of protection, 
which were fulfilled by his imprisonment, and gladly, on his 
release, going to London, where he supported himself for a 
year by writing and teaching, he at length, in 1827, found a 
permanent domicile in the United States. But here for some 
time he had no fixed dwelling-place. From Boston, where he 
stayed five years, he removed to New York in 1832, then to 
Philadelphia in 1833, and then, in 1835, accepted the chair of 
History and Political Economy in the University of South 
Carolina. One more transplantation, from this scene of his 
professional as well as literary labors, brought him, as we have 
seen, to New York, in 1858, where he ended his days. Thus, 
resembling the Greek 

" Qui multorum hominum mores et vidit et urbes," 

he was enabled to add to the treasures of history with which 
his education had enriched his mind, the experience of a man 
versed in life, acquainted with mankind under many forms of 
society, having the best opportunities to observe governments 
and political institutions, and stimulated by intercourse with a 
person like Barthold Niebuhr. It is worth noticing here that 
his life in the United States was almost equally diversified with 



8 INTRODUCTION TO THE THIRD EDITION. 

his earlier life passed in Europe. Especially he had an oppor- 
tunity, such as few have had, of seeing life in a State where 
slavery existed, in a State at the very head of Southern insti- 
tutions, where a large number of refined men, given to politics, 
had reduced Southern principles to a doctrine, which they 
sought to engraft on the Constitution of the country, under 
the guidance of so accomplished and deep-thinking a states- 
man as Calhoun. 

Dr. Lieber's native traits of mind seem to have been such 
that he was able readily to assimilate the impressions which 
a great diversity of institutions made upon him. We are wont 
to contrast the German mind, deep but not clear, prone to 
speculation, unpractical, with our practical, clear-sighted, but 
short-sighted English mind. But Dr. Lieber, while he had a 
scientific " anlage" had an eminently practical spirit, capable 
of gathering from history and experience their lessons, and of 
reconciling scientific truth with the demands and possibilities 
of an existing state of things. The science of politics rests on 
the idea of justice and of rights; but the questions, What is the 
best possible state ? How far can the experience of one state 
be applied with advantage to another ? What securities are 
needed by a nation against a government ? and What power 
is needed by a government for the highest welfare of the 
nation ? — these and many others are purely practical questions, 
which must be answered by the experience, the knowledge, 
the wisdom of thoughtful men, or else abstractionists and 
political revolutionists will answer them to a nation's ruin. 
Dr. Lieber felt that English liberty had been under a remark- 
able guidance of the divine Ruler of men; that justice, order, 
stability, freedom, had been reconciled in it in a wonderful 
way ; that its capacity of progress without revolution set it up 
as a model and guide to the nations ; while yet, everywhere, 
the best men ought to judge, with all the light and candor 
possible, how far these principles of the Anglican race could 
be adopted and engrafted on other constitutions. He was 
thus no German/ except in justly estimating the excellent 
traits of his fatherland : in his political judgments he was 



INTRODUCTION TO THE THIRD EDITION. 



9 



more of an Englishman or of a republican than anything else. 
We wonder, as we become acquainted with him in the writings 
of his mature life, how there could have been any froth of 
liberty in his youth which brought suspicion upon him, and 
can only account for the treatment he received from the police 
of his native country by that dread of revolution which French 
movements during a generation had aroused, and which, with 
unnatural sharpness of sight, saw in the youthful deliverers of 
their country the foes of kings. 

The "Civil Liberty and Self-Government" cannot be read 
profitably without taking into view the events of 1848 and the 
new empire of Napoleon III. Through the book there is a 
contrast, which often appears, between Anglican and Gallican 
liberty, between checks and guarantees, institutions and dif- 
fused power, on the one hand, and a government, on the other, 
with no checks and no institutions, with a centralized power 
swallowing up all minor authority in the great leviathan, and 
calling that a government of the people, because the people gave 
their consent to it once and forever. Our author watched this 
French system, no doubt, with intense interest, and when he 
saw the government of lies and of moral corruption falling 
under the blows of a vigorous foe, it was not as a Prussian or 
a German that he rejoiced in it, but as a man, a true American 
and a Christian. Here was the judgment of events, the rebuke 
of God. If, together with this high satisfaction in catching 
glimpses of a divine government, we might attribute some 
pleasure to our author when he found that history was con- 
firming his theory, that he had almost prophesied in this book, 
and that the hopes of mankind would be the brighter for what 
happened in 1870, we could not surely find fault with him. 

The value of this work in this country consists chiefly in its 
corrections of some of our prevalent tendencies. In chapter 
xxii. the author remarks that, as it appears to him, "while 
the English incline occasionally too much to the historical 
element, we, in turn, incline occasionally too much toward 
abstraction ;" and further, " that it is certain that we conceive 
of the rights of the citizen more in the abstract, and more as 



10 INTRODUCTION TO THE THIRD EDITION. 

attributes of his humanity." Both of these remarks are un- 
doubtedly true. We are inexperienced and self-confident, 
with small historical knowledge, and we run into abstractions 
as the easiest things for the least educated to comprehend, and 
for demagogues to make the starting-point in their projects 
and deductions. We make little distinction practically be- 
tween personal and political rights, so that the right of suffrage 
seems to belong to the human being as such, although, incon- 
sistently, we withhold it still from women and minors. A citi- 
zen without suffrage is hardly conceived of. We are coming, 
too, to believe in a more liberal construction of the general 
Constitution, so as to throw larger power into the hands of 
Congress, and to look to the government for help in difficulty ; 
and this at the very time when the newest and wisest reforms 
in state constitutions are restricting legislatures in the sphere 
of their functions. The tendency plainly is towards a more 
centralized government by a freer interpretation of the United 
States Constitution. The dangers which menace us from this 
tendency, and from what may be called democratic abstraction, 
are met by such a book as this, which teaches that there is no 
safe liberty but one under checks and guarantees, one which 
is articulated, one which by institutions of local self-govern- 
ment educates the whole people and moderates the force of 
administrations, one which sets up the check of state power 
within certain well-defined limits against United States power, 
one which draws a broad line between the unorganized masses 
of men calling themselves the people and the people formed 
into bodies, "joined together and compacted" by constitutions 
and institutions. 

May this book still lead our young men into the paths of 
political wisdom, and may the old guarantees and checks, the 
substance of English liberty, with whatever of good we have 
received that is peculiar to the American people, have, as years 
roll on, more and more of our confidence and veneration ! 

Theodore D. Woolsey. 

New Haven, January 28, 1874. 



CONTENTS. 



CHAPTER I. 

PAGE 

Introductory 17 

CHAPTER II. 
Definitions of liberty 23 

CHAPTER III. 
The meaning of civil liberty 37 

CHAPTER IV. 

Ancient and modern liberty. — Ancient, medieval, and modern 
states . . . 43 

CHAPTER V. 
Anglican liberty 51 

CHAPTER VI. 
National independence. — Personal liberty 56 

CHAPTER VII. 
Bail. — Penal trial 67 

CHAPTER VIII. 
High treason 79 

CHAPTER IX. 

Communion. — Locomotion, emigration 87 

11 



12 ' CONTENTS. 



CHAPTER X. 

PAGE 

Liberty of conscience. — Property. — Supremacy of the law . 97 

CHAPTER XI. 
Quartering soldiers. — The army 113 

CHAPTER XII. 
Petition. — Association 121 

CHAPTER XIII. 
Publicity 127 

CHAPTER XIV. 
Supremacy of the law.— Taxation. — Division of power . . 143 

CPIAPTER XV. 

Responsible ministers. — Courts declaring laws unconstitu- 
tional. — Representative government . . . . . 159 

CHAPTER XVI. 

Representative government, continued. — Basis of property. — 
Direct and indirect elections 171 

CHAPTER XVII. 

Parliamentary law and usage. — The speaker. — Two houses. — 
The veto 185 

CHAPTER XVIII. 

Independence of the judiciary. — The law, jus, common law . 203 

CHAPTER XIX. 

Independence of jus, self-development of law, continued. — Ac- 
cusatorial and inquisitorial trials. — Independence of the 
judge 215 

CHAPTER XX. 

Independence of jus, continued. — Trial by jury. — The advocate 232 



CONTENTS. 13 



CHAPTER XXI. 

PAGE 

Self-government 247 



CHAPTER XXII. 
American liberty . . . . . . . . . . 256 

CHAPTER XXIII. 
In what civil liberty consists, proved by contraries . . . 270 

CHAPTER XXIV. 
Gallican liberty. — Spreading of liberty 279 

CHAPTER XXV. 
The institution. — Its definition. — Its power for good and evil 297 

CHAPTER XXVI. 

The institution continued. — Institutional liberty. — Institu- 
tional local self-government 316 

CHAPTER XXVII. 
Effects and uses of institutional self-government . . . 324 

CHAPTER XXVIII. 
Dangers and inconveniences of institutional self-government . 336 

CHAPTER XXIX. 

Advantages of institutional government, farther considered . 346 

CHAPTER XXX. 

Institutional government the only government which prevents 
the growth of too much power. — liberty, wealth, and lon- 
gevity of states . 357 

CHAPTER XXXI. 

Insecurity of uninstitutional governments. — Unorganized inar- 
ticulated popular power ........ 363 



I 4 CONTENTS. 



CHAPTER XXXII. 

PAGE 

Imperatorial sovereignty 374 



CHAPTER XXXIII. 

Imperatorial sovereignty, continued. — Its origin and character 
examined 381 



CHAPTER XXXIV. 
Centralization. — Influence of capital cities ..... 389 

CHAPTER XXXV. 
Vox Populi Vox Dei 398 



APPENDIX. 



APPENDIX I. 

A paper on elections, election statistics, and general votes of 
yes or no 413 



APPENDIX II. 

A PAPER ON THE ABUSE OF THE PARDONING POWER . . . . 43 1 

APPENDIX III. 

A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL TRIAL 

AND THE LAWS OF EVIDENCE 45 1 

APPENDIX IV. 
Magna charta of king John 458 



CONTENTS. 15 



APPENDIX V. 

PAGE 

The petition of right 478 



APPENDIX VI. 

An act for the better securing the liberty of the subject, and 
for prevention of imprisonments beyond the seas, commonly 
called "the habeas corpus act" 483 



APPENDIX VII. 

Bill of rights, passed i William and Mary, sess. 2, ch. 2, 
1689 492 

APPENDIX VIII. 

A declaration by the representatives of the United States of 
America in congress assembled 498 

APPENDIX IX. 

Articles of confederation and perpetual union between the 

STATES 503 

APPENDIX X. 

Constitution of the United States of America . . . -514 

f 

APPENDIX XI. 

The French constitution, adopted and proclaimed on the twenty- 
fourth of June, 1793 531 

APPENDIX XII. 

French charter of Louis XVIII. and that adopted in the year 
1830 545 

APPENDIX XIII. 
Constitution of the French republic 555 

APPENDIX XIV. 
The present constitution of France 570 



1 5 CONTENTS. 



APPENDIX XV. 

PAGE 

Report of the French senatorial committee on the petitions to 
change the republic into an empire, in november, 1852, and 
the senatus-consultum adopted in conformity with it . . 588 



APPENDIX XVI. 

Letter of the French minister of the interior, Mr. De Morny, 
addressed to the prefects of the departments in the year 

1852 605 



ON 

CIVIL LIBERTY 



AND 



SELF-GOVERNMENT. 



CHAPTER I, 

INTRODUCTORY. 

We live at a period when it is the duty of reflecting men to 
ponder conscientiously these important questions : In what 
does civil liberty consist ? How is it maintained ? What are 
its means of self-diffusion, and under what forms do its chief 
dangers present themselves ? 

Our age, marked by restless activity in almost all depart- 
ments of knowledge, and by struggles and aspirations before 
unknown, is stamped by no characteristic more deeply than 
by a desire to establish or extend freedom in the political 
societies of mankind. At no previous period, ancient or 
modern, has this impulse been felt at once so strongly and by 
such extensive numbers. The love of civil liberty is so lead- 
ing a motive in our times, that no man who does not under- 
stand what civil liberty is, has acquired that self-knowledge 
without which we do not know where we stand, and are super- 
numeraries or instinctive followers, rather than conscious, 
working members of our race, in our day and generation. 

The first half of our century has produced several hundred 
political constitutions, some few of substance and sterling 
worth, many transient like ephemeral beings, but all of them 
testifying to the endeavors of our age, and plainly pointing 
out the high problem that must be solved ; many of them 



1 8 ON CIVIL LIBERTY 

leaving roots in despite of their short existence, which some 
day will sprout and prosper. It is in history as in nature. 
Of all the seeds that germinate, but few grow up to be trees, 
and of all the millions of blossoms, but thousands, or even 
hundreds, ripen into fruit. 

Changes, frequently far greater than are felt by those who 
stand in the midst of them, have taken place; violent convul- 
sions have shaken large and small countries, and blood has 
been shed — that blood which has always flowed before great 
ideas could settle into actual institutions, or before the yearn- 
ings of humanity could become realities. Every marked 
struggle in the progress of civilization has its period of con- 
vulsion. Our race is in that period now, and thus our times 
resemble the epoch of the Reformation. 

Many who unreservedly adhere to the past, or who fear its 
evils less than those of change, resist the present longings of 
our kind, and seem to forget that change is always going on, 
whether we will or not. States consist of living beings, and 
life is change. Others seem to claim a right of revolution for 
governments, under the name of coup d'etat, but deny it to 
the people ; and large portions of the people have overleaped 
civil liberty itself. They daringly disavow it, and pretend to 
believe that they find the solution of the great problem of our 
times either in an annihilation of individuality, or in an apo- 
theosis of individual man, and preach communism, individual 
sovereignty, or the utmost concentration of all power and po- 
litical action in one Caesar. " Parliamentary liberty" is a term 
sneeringly used in whole countries to designate what they 
consider an obsolete encumbrance and decaying remnants of 
a political phase belonging to the past. The representative 
system is laughed at, and the idol of monarchical or popular 
absolutism is draped anew, and worshipped by thousands as 
if it were the latest avatar of their political god. What, but 
a lustre or two ago, would have been universally considered 
impossible, has come to pass ; Rousseau's hatred of representa- 
tive government is loudly and largely professed in France, 
not only by the army and the faction which holds power, 



AND SELF-GOVERNMENT. 



19 



but also by the French republican of extreme views, to whom 
nothing is more odious than decentralized self-government ; 
and the two seem perfectly to agree with the views lately 
proclaimed on an important occasion, that the essence of 
political civilization consists in universal suffrage and the 
code Napoleon, with which, and a moderately strong army, it 
would be easy to conquer Great Britain. 1 

There are not a few in our own country who, seeing the 
perversion of principles and political corruption, follow the 
besetting fallacy of men, and seek salvation from one evil in 
its opposite, as if the means of escaping death by fire were 
freezing to death. 

We must find our way through all these mazes. This is one 
of our duties, because it has pleased Providence to cast our 
lot in the middle of the nineteenth century, and because an 
earnest man ought to understand, above all other social 
things, his own times. 

Besides these general considerations, weighty as they are, 
there are others which press more immediately upon ourselves. 
Most of us descend in blood, and all of us politically, from 
that nation to which has been assigned, in common with our- 
selves, the high duty of developing modern civil liberty, and 
whose manliness and wisdom, combined with a certain his- 
torical good fortune, which enabled it to turn to advantage 
elements that proved sources of evil elsewhere, have saved it 
from the blight of absorbing centralization. England was the 
earliest country to put an end to feudal isolation, while still 
retaining independent institutions, and to unite the estates 



1 These views were laid before the civilized world in a pamphlet, published in 
the summer of 1858, well known to be countenanced by the ruling party in 
France, and have been frequently stated before. The code Napoleon flatters 
the vanity of the French people, and not being conscious of the fact that the 
most important element of political civilization is civil liberty, they take this code 
as the sum of political civilization, while it is peculiarly obtuse on all matters 
relating to political rights and man's protection as a freeman. How could it be 
otherwise with a code which proceeded from the civil law, and received, wherever 
it treats of personal rights, an impress from a man who, more perhaps than any 
other person on the stage of history, instinctively abhorred everything inclining 
toward liberty, even the first germs of freedom ? 



20 ON CIVIL LIBERTY 

into a powerful general parliament, able to protect the nation 
against the crown. 1 There, too, centuries ago, trials for high 
treason were surrounded with peculiar safeguards, besides 
those known in common criminal trials, in favor of the ac- 
cused, an exception the very reverse of which we observe in 
all other European countries down to the most recent times, 
and in most countries to this day. In England we first see 
applied in practice, and on a grand scale, the idea which came 
originally from the Netherlands, that liberty must not be a 
boon of the government, but that government must derive its 
rights from the people. Here, too, the people always clung 
to the right to tax themselves; and here, from the earliest 
times, the administration of justice has been separated from 
the other functions of government, and devolved upon magis- 
trates set apart for this end, a separation not yet found in all 
countries. 2 In England, power of all kind, even of the crown, 
has ever bowed, at least theoretically, to the supremacy of the 
law ; 3 and that country may claim the imperishable glory of 



1 The necessity of a union of the different courts and bodies of the state was 
often perceived by those who felt called upon to resent the crown, and the cor- 
responding desire to defeat it, by the crown. An instance was furnished in 
France in 1648, when Mazarin strove to annul the arret d^ union. 

2 I do not only allude to such bodies as the French parliaments, but to the fact 
that down to this centuiy the continental courts of justice conducted, in innumer- 
able cases, what is now frequently called the administrative business, such as 
collecting taxes, letting crown domains, superintending roads and bridges. The 
early separation of the English judge — I do not speak of his independence, 
which is of much later date — and the early, comparatively speaking, independent 
position of the English church, seem to me two of the most significant facts in 
English history, and answer in a great measure the question so often asked, Why 
is it that France, constituted so much like England down to the twelfth or thir- 
teenth century, lost her liberty, and England not? It partially accounts for the 
still more surprising fact that the most advanced portions of Spain, at one period, 
had a clearer perception of liberty than England had, but are now immeasurably 
behind her. 

3 Even a Henry VIII. took care to have first the law changed when it could 
not be bent to his tyrannical acts. Despots in other countries did not take this 
trouble; and I do not know whether the history of any other period impresses 
the student with that peculiar meaning which the English word Law has ac- 
quired, more forcibly than this very reign of tyranny and royal bloodshed. 



AND SELF-GOVERNMENT. 21 

having formed a national representative system of two houses, 
governed by a parliamentary law of their own, with that im- 
portant element, at once conservative and progressive, of a 
lawful, loyal opposition. It is that country which alone saved 
judicial and political publicity, when secrecy prevailed every- 
where else ; x which retained a self-developing common law and 
established the trial by jury. In England, the principles of 
self-government were not swept away, and all the chief prin- 
ciples and guarantees of her Great Charter and the Petition 
of Right have passed over into our constitutions. 

We belong to the Anglican race, which carries Anglican 
principles and liberty over the globe, because wherever it 
moves, liberal institutions and a common law full of manly 
rights and instinct with the principle of an expansive life, ac- 
company it. We belong to that race whose obvious task it is, 
among other proud and sacred tasks, to rear and spread civil 
liberty over vast regions in every part of the earth, on conti- 
nent and isle. We belong to that tribe which alone has the 
word Self-Government. We belong to that nation whose 
great lot it is to be placed, with the full inheritance of freedom, 
on the freshest soil in the noblest site between Europe and 
Asia, a nation young, whose kindred countries, powerful in 
wealth, armies, and intellect, are old. It is a period when a 
peaceful migration of nations, similar in the weight of numbers 
to the warlike migration of the early middle ages, pours its 
crowd into the lap of our more favored land, there to try, and 
at times to test to the utmost, our institutions — institutions 
which are our foundations and buttresses, as the law which 
they embody and organize is our sole and sovereign master. 

These are the reasons why it is incumbent upon every 
American again and again to present to his mind what his own 
liberty is, how he must guard and maintain it, and why, if he 
neglect it, he resembles the missionary that should proceed to 



1 Trials, especially criminal trials, remained public in several countries, for 
instance, *in the kingdom of Naples ; but judicial and political publicity van- 
ished everywhere except in England; nor was the publicity of such trials as 
those of Naples of much value. 



22 ON CIVIL LIBERTY 

convert the world without Bible or prayer-book. These are 
the reasons why I feel called upon to write this work, in ad- 
dition to what I have given long ago in another place on the 
subjects of Justice, Law, the State, Government and Sover- 
eignty, on Liberty and Right, 1 and to which, therefore, I 
must refer my reader for many preliminary particulars ; and 
these, too, are the reasons why I ask for an attention corre- 
sponding to the sense of responsibility with which I approach 
the great theme of political vitality — the leading subject of 
Western history 2 and the characteristic stamp and feature of 
our race, our age, our own country and its calling. 



1 In my Political Ethics. 

2 I ask permission to draw the attention of the scholar to a subject which 
appears to me important. I have used the term Western history, yet it is so 
indistinct that I must explain what is meant by it. It ought not to be so. I mean 
by Western history the history of all historically active, non-Asiatic nations and 
tribes — the history of the Europeans and their descendants in other parts of the 
world. In the grouping and division of comprehensive subjects, cleaimess de- 
pends in a great measure upon the distinctness of well-chosen terms. Many 
students of civilization have probably felt with me the desirableness of a concise 
term, which should comprehend within the bounds of one word, capable of fur- 
nishing us with an acceptable adjective, the whole of the Western Caucasian 
portion of mankind — the Europeans and all their descendants in whatever part 
of the world, in America, Australia, Africa, India, the Indian Archipelago and 
the Pacific Islands. It is an idea which constantly recurs, and makes the neces- 
sity of a proper and brief term daily felt. Bacon said that " the wise question 
is half the science;" and may we not add that a wise division and apt termi- 
nology is its completion? In my private papers I use the term Occidental in a 
sufficiently natural contradistinction to Oriental. But Occidental, like Western, 
indkates geographical position ; nor did I feel otherwise authorized to use it 
here. Europides would not be readily accepted. Japhethian would compre- 
hend more tribes than we wish to designate. That some term or other must 
soon be adopted seems to me clear, and I am ready to accept any expressive 
nnme formed in the spirit and according to the taste of our language. The 
chemist and natural historian are not the only ones that stand in need of distinct 
names for their subjects, but they are less exacting than scholars. As the whole 
race is called the Caucasian, shall we designate the group in question by the 
name of Cis-Caucasian ? It is more important for the scholar of civilization to 
have a distinct name for the indicated group, than it was for the student of the 
natural history of our race to adopt the recently formed term of prognathous 
tribes, in order to group together all the tribes with projecting jaws. 



AND SELF-GOVERNMENT. 23 



CHAPTER II. 

DEFINITIONS OF LIBERTY. 

A distinguished writer has said that every one desires 
liberty, but it is impossible to say what it is. If he meant by 
liberty, civil liberty, and that it is impossible to give a defini- 
tion of it, using the term definition in its strictest sense, he 
was right; but he was mistaken if he intended to say that 
we cannot state and explain what is meant by civil liberty in 
certain periods, by certain tribes, and that we cannot collect 
something general from these different views. Civil liberty 
does not fare worse in this respect than all other terms which 
designate the collective amount of different applications of the 
same principle, such as Fine Arts, Religion, Property, Re- 
public. The definitions of all these terms imply the use of 
others variable in their nature. The time, however, is passed 
when, as in the age of scholastic philosophy, it was believed 
that everything was strictly definable, and must be compressed 
within the narrow limits of an absolute definition before it 
could be entitled to the dignity of a thorough discussion. The 
hope of being able absolutely to define things that belong 
either to the commonest life 1 or the highest regions, betrays a 
misconception of human language, which itself is never abso- 
lute except in mathematics. It misleads. Bacon, so illus- 
trious as a thinker, has two dicta which it will be well for us to 
remember throughout this discussion. He says: " Generalities 



1 Is it necessary to remind the reader of Dr. Johnson's definition of the Knife? 
or of the fact that the greater portion of all law business arises from the impos- 
sibility of giving absolute definitions for things that are not absolute themselves? 
A knife and a dagger are terms sufficiently clear in common life, but it has been 
found very difficult to define them, in many penal cases, when the law awards 
different punishments for wounds inflicted by the one or the other. 



24 



ON CIVIL LIBERTY 



are barren, and the multiplicity of single facts present nothing 
but confusion. The middle principles alone are solid, orderly, 
and fruitful;" and in another part of his immortal works he 
states that " civil knowledge is of all others the most immersed 
in matter and the hardliest reduced to axioms." We may 
safely add, " and expressed in definitions." It would be 
easy, indeed, and correct, as far as it would go, to say : Civil 
liberty is the idea of liberty, which is untrammeled action, 
applied to the sphere of politics ; but although this definition 
might be called " orderly," 'it would certainly neither be 
"solid" nor "fruitful," unless a long discussion should follow 
on what it means in reality and practice. 

This does by no means, however, affect the importance of 
investigating the subject of civil liberty and of clearly pre- 
senting to our minds what we mean by it, and of what ele- 
ments it consists. Disorders of great public inconvenience, 
even bloodshed and political crimes, have often arisen from the 
fact that the two sacred words, Liberty and People, were freely 
and passionately used without a clear and definite meaning 
being attached to them. A people that loves liberty can do 
nothing better to promote the object of its love than deeply to 
study it; and in order to be able to do this, it is necessary to 
analyze it, and to know the threads which compose the valued 
texture. 

In a general way, it may here be stated as an explanation — 
not offered as a definition — that when the term Civil Liberty 
is used, there is now always meant a high degree of mutually 
guaranteed protection against interference with the interests 
and rights held dear and important by large classes of civil- 
ized men or by all the members of a state, together with an 
effectual share in the making and administration of the laws 
as the best apparatus to secure that protection, and consti- 
tuting the most dignified government of men who are conscious 
of their rights and of the destiny of humanity. We under- 
stand by civil liberty not only the absence of individual re- 
straint, but liberty within the social system and political organ- 
ism — a combination of principles and laws which acknowledge, 



AND SELF-GOVERNMENT. 2 $ 

protect, and favor the dignity of man. But what are these 
guarantees, these interests and rights ? Who are civilized 
men ? In what does that share consist? Which are the men 
that are conscious of their rights ? What is the destiny of 
humanity ? Who are the large classes? 

I mean by civil liberty that liberty which plainly results 
from the application of the general idea of freedom to the civil 
state of man, that is, to his relations as a political being — a 
being obliged by his nature and destined by his Creator to 
live in society. Civil liberty is the result of man's twofold 
character, as an individual and social being, so soon as both 
are equally respected. 

All men desire freedom of action. We have this desire, in 
some degree, even in common with the animal, where it mani- 
fests itself at least as a desire for freedom of motion. The 
fiercest despot desires liberty as much as the most ardent re- 
publican ; indeed, the difficulty is that he desires it too much* 
— selfishly, exclusively. 1 He wants it for himself alone. He 



1 I believe that this has never been shown with greater and more truculent 
naivete than by the present King of Dahomey in the letter he wrote to the 
Queen of England in 1852. Every case in which an idea, bad or good, is 
carried to a point of extreme consistency is worth being noted ; I shall give, 
therefore, a part of it. • 

The British government had sent an agent to that king, with presents, and the 
direction to prevent him from further trade in slaves ; and the king's answer 
contains the following passage : — 

" The King of Dahomey presents his compliments to the Queen of England. 
The presents which she has sent him are very acceptable and are good to his 
face. When Governor Winiett visited the king, the king told him that he must 
consult his people before he could give a final answer about the slave-trade. He 
cannot see that he and his people can do without it. It is from the slave-trade 
that he derives his principal revenue. This he has explained in a long palaver 
to Mr. Cruikshank. He begs the Queen of England to put a stop to the slave- 
trade everywhere else, and allow him to continue it." 

In another passage he says : — 

" The king begs the queen to make a law that no ships be allowed to trade at 
any place near his domains lower down the coast than Wydah, as by means of 
trading vessels the people are getting rich and resisting his authority. He hopes 
the queen will send him some good tower guns and blunderbusses, and plenty 
of them, to enable him to make war" (which means razzias, in order to carry off 
captives for the barracu, or slave market). 



26 ON CIVIL LIBERTY 

has not elevated himself to the idea of granting to his fellows 
the same liberty which he claims for himself, and of desiring 
to be limited in his own power of trenching on the same liberty 
of others. This is one of the greatest ideas to which man can 
rise. In this mutual grant and check lies the essence of civil 
liberty, as we shall presently see more fully, and in it lies its 
dignity. It is a grave error to suppose that the best govern- 
ment is absolutism with a wise and noble despot at the head 
of the state. As to consequences it is even worse than abso- 
lutism with a tyrant at its head. The tyrant may lead to re- 
flection and resistance; the wisdom and brilliancy, however, 
of the government of a great despot or dictator deceive and 
unfit the people for a better civil state. This is at least true 
with reference to all tribes not utterly lost in despotism, as the 
Asiatics are. The periods succeeding those of great and bril- 
liant despots have always been calamitous. 1 The noblest 
human work, nobler even than literature and science, is broad 
civil liberty, well secured and wisely handled. The highest 
ethical and social production of which man, with his insepa- 
rable moral, jural, aesthetic and religious attributes, is capable, 
is the comprehensive and minutely organic self-government of 
a free people ; and a people truly free at home, and dealing 
in fairness and justice with other nations, is the greatest, un- 
fortunately also the rarest, subject offered in all the breadth 
and length of history. 

In the definitions of civil liberty which philosophers or pub- 
licists have, nevertheless, endeavored to give, they seem to 
have fallen into one or more of the following errors. Some 
have confounded liberty, the status of the freeman as opposed 
to slavery, with civil liberty. But every one is aware that 
while we speak of freemen in Asia, meaning only non-slaves, 



The claims of "undoubted sovereignty" and the "independent power" of 
kings, put forth by the Stuarts, by Louis XIV., and by all who looked upon 
kings, restricted in their power, as unworthy peers of the "real princes," must 
be classed under the same head with the aspirations of the principate of Daho- 
mey, however they may differ in form. 

1 I have dwelt on this subject at length in my Political Ethics. 



AND SELF-GOVERNMENT. 27 

we would be very unwilling to speak of civil liberty in that 
part of the globe. The ancients knew this distinction per- 
fectly well. There were the Spartans, constituting the ruling 
body of citizens, and enjoying what they would have called, 
in modern language, civil liberty, a full share in the govern- 
ment of the polity ; there were Helots ; and there were Lace- 
daemonian people, who were subject, indeed, to the sovereign 
body of the Spartans, but not slaves. They were freemen, 
compared to the Helots ; but subjects, as distinguished from 
the Spartans. This distinction is very plain, but the confusion 
has not only frequently misled in times past, but is actually 
going on to this day in many countries. 

Others have fallen into the error of substituting a different 
word for liberty, and believed that they had thus defined it ; 
while others, again, have confounded the means by which 
liberty is secured in certain communities, with liberty itself. 
Some, again, have been led, unawares, to define an idea wholly 
different from civil liberty, while imagining that they were 
giving the generics and specifics of the subject. 

The Roman lawyers say that liberty is the power (authority) 
of doing that which is not forbidden by the law. That the 
supremacy of the law and exclusion of arbitrary interference 
is a necessary element of all liberty, every one will readily 
admit; but if no additional characteristics be given, we have, 
indeed, no more than a definition of the status of a non-slave. 
It does not state whence the laws ought to come, or what 
spirit ought to pervade them. The same lawyers say : What- 
ever may please the ruler has the force of law. 1 They might 
have said with equal correctness : Freeman is he who is di- 
rectly subject to the emperor; slave, he who is subject to the 
emperor through an intermediate and individual master. It 
settles nothing as to what we call liberty, as little as the other 
dictum of the civil law, which divides all men into freemen 
and slaves. The meaning of freeman, in this case, is nothing 
more than non-slave ; while our word freeman, when we use 



Quod principi placuerit legis habet vigorem. — L. i. lib. i. tit. 4 Dig. 



28 ON CIVIL LIBERTY 

it in connection with civil liberty, means not merely a nega- 
tion of slavery, but the enjoyment of positive and high civil 
privileges and rights. 1 

It is remarkable that an English writer of the last century, 
Dr. Price, makes the same simple division of slavery and 
liberty, although it leads him to very different results. 2 Ac- 
cording to him, liberty is self-determination or self-govern- 
ment, and every interruption of self-determination is slavery. 
This is so extravagant, that it is hardly worth our while to 
show its fallacy. Civil liberty is liberty in a state of society ; 
that is, in a state of union with equals; consequently, limita- 
tion of self-determination is one of the necessary character- 
istics of civil liberty. 

Cicero says : Liberty is the power of living as thou wiliest. 3 
This does not apply to civil liberty. It would apply to savage 
insulation. If it was meant for political liberty, it would 
have been necessary to add, " so far as the same liberty of 
others does not limit your own living as you choose." But 
we always live in society, so that this definition can have a 
value only as a most general one, to serve as a starting-point, 
in order to explain liberty if applied to different spheres. 
Whether this was the probable intention of a practical Roman, 
I need not decide. 

Libertas came to signify, in the course of time, and in 
republican Rome, simply republican government, abolition 
of royalty. We have advanced beyond this idea. The most 
sanguinary pages of history have taught us that a kingless 
government is not, on that account alone, a republic, if the 
term republic is intended to comprehend the idea of self- 
government in any degree. France had as absolute and as 
stringently concentrated a government under her so-called 
republics, as under any of her kings. To classify governments, 



1 Summa divisio de jure personarum haec est, quod omnes homines aut liberi, 
sunt aut servi. — Inst., i. 3. 

2 Observations on the Nature of Civil Liberty, etc., by Richard Price, D.D., 
3d ed., Lond., 1776. 

3 Quid est libertas? Potestas vivendi ut velis. — Cic, Parad., 5, I, 34. 



AND SELF-GOVERNMENT. 



2 9 



with reference to liberty, into monarchies and republics, is an 
error in principle. An Englishman who lives under a mon- 
archy, for such certainly his royal republic is called, enjoys 
an amount of self-government and individual liberty far greater 
than the Athenian ever possessed or is established in any 
republic of South America. 

The Greeks likewise gave the meaning of a distinct form of 
government to their word for liberty. Eleutheria, they said, 
is that polity in which all are in turn rulers and ruled. It is 
plain that there is an inkling of what we now call self-govern- 
ment in this adaptation of the word, but it does not designate 
liberty as we understand it. For it may happen, and indeed 
it has happened repeatedly, that although the rulers and ruled 
change, those that are rulers are arbitrary and oppressive 
whenever their turn arrives; and no political state of things 
is more efficient in preparing the people to pass over into 
despotism, by a sudden turn, than this alternation of arbitrary 
rule. If this definition really defined civil liberty, it would 
have been enjoyed in a high degree by those communities in 
the middle ages, in which constant changes of factions and 
persecutions of the weaker parties were taking place. Athens, 
when she had sunk so low that the lot decided the appoint- 
ment to all important offices, would at that very period have 
been freest, while in fact her government had become plain 
democratic absolutism, one of the very worst of all govern- 
ments, if, indeed, the term government can be properly used 
of that state of things which exhibits Athens after the times 
of Alexander, not like a bleeding and fallen hero, but rather 
like a dead body, on which birds and vermin make merry. 

Not wholly dissimilar to this definition is the one we find 
in the French Political Dictionary, a work published in 1848, 
by leading republicans, as this term was understood in France. 
It says, under the word liberty: "Liberty is equality, equality 
is liberty." If both were the same, it would be surprising that 
there should be two distinct words. Why were both terms 
used in the famous device, " Liberty, Equality, Fraternity," if 
the first two are synonymous, yet an epigrammatic brevity 



30 ON CIVIL LIBERTY 

was evidently desired ? Napoleon distinguished between the 
two very pointedly, when he said to Las Cases that he gave 
to the Frenchmen all the circumstances allowed, namely > 
equality, and that his son, had he succeeded him, w r ould have 
added liberty. The dictum of Napoleon is mentioned here 
merely to show that he saw the difference between the two 
terms. Equality, of itself, without many other elements, has 
no intrinsic connection with liberty. All may be equally de- 
graded, equally slavish, or equally tyrannical. Equality is 
one of the pervading features of Eastern despotism. A Turk- 
ish barber may be made vizier far more easily than an Amer- 
ican hair-dresser can be made a commissioner of roads, but 
there is not on that account more liberty in Turkey. 1 Diver- 
sity is the law of life ; absolute equality is that of stagnation 
and death. 2 

A German author of a work of mark begins it with this 
sentence: "Liberty — or justice, for where there is justice 
there is liberty, and liberty is nothing else than justice — has 
by no means been enjoyed by the ancients in a higher degree 
than by the moderns." 3 Either the author means by justice 
something peculiar, which ought to be enjoyed by every one, 
and which is not generally understood by the term, in which 
case the whole sentence is nugatory, or it expresses a grave 
error, since it makes equivalents of two things which have re- 
ceived two different names, simply because they are distinct 



1 Since the publication of the first edition of this work, an article on " Ma- 
hometanism in Western Asia," has appeared in the " Edinburgh Review," Octo- 
ber, 1853, in which the Eastern equality as an ingredient of despotism is illus- 
trated by many striking instances from different spheres of life. The writer, 
who is plainly master of his subject, from personal knowledge, if would appear, 
agrees with us that liberty is based on individuality. Indeed, it may be said 
that in a great degree it consists in essential protection of individuality, of per- 
sonal rights. The present Emperor of the French felt this when he wrote his 
chapter, De la Liberte individuelle en Angleterre. He was then an exile and 
could perceive liberty. 

2 More has been said on this subject in Political Ethics, and we shall return 
to it at a later period. 

3 Descriptions of the Grecian Polities, by F. W. Tittmann ; Leipsic, 1822. 



AND SELF-GOVERNMENT. 3 1 

from one another. The two terms would not even be allowed 
to explain each other in a dictionary. 

Liberty has not unfrequently been defined as consisting in 
the rule of the majority, or it has been said, Where the people 
rule there is liberty. The rule of the majority, of itself, indi- 
cates the power of a certain body ; but power is not liberty. 
Suppose the majority bid you drink hemlock, is there liberty 
for , you? Or suppose the majority give away liberty, and 
establish despotism ? It has been done again and again : 
Napoleon III. claims his crown by right of election by the 
overwhelming majority of Frenchmen, and perpetuates his 
government by universal suffrage, as he says. Granting, for 
the sake of argument, that there was what we call a bona fide 
election, and that there is now existing an efficient universal 
suffrage, there is no man living who would vindicate liberty 
for present France. Even the imperial government period- 
ically proclaims that it cannot yet establish liberty, because 
France is distracted by factions, by " different nations," as an 
imperial dignitary lately expressed it in an official speech. 

We might say with greater truth, that where the minority 
is protected, although the majority rule, there, probably, 
liberty exists. But in this latter case it is the protection, or, 
in other words, rights beyond the reach of the majority which 
constitute liberty, not the power of the majority. There can 
be no doubt that the majority ruled in the French massacres 
of the Protestants ; was there liberty in France on that ac- 
count ? All despotism, without a standing army, must be sup- 
ported or acquiesced in by the majority. It could not stand 
otherwise. If the definition be urged, that where the people 
rule there is liberty, we must ask at once, What people, and 
how rule ? These intended definitions, therefore, do not 
define. 

Other writers have said : " Civil liberty consists in the re- 
sponsibility of the rulers to the ruled." It is obvious that this 
is an element of all civil liberty ; but the question, What respon- 
sibility is meant? is an essential one; nor does this respon- 
sibility alone suffice by any means to establish civil liberty. 



32 



ON CIVIL LIBERTY 



The Dey of Algiers used to be elected by the soldiery, who 
deposed him if he did not suit ; but there was no liberty in 
Algiers, not even for the electing soldiery. The idea of the 
best government, repeatedly urged by a distinguished French 
publicist, Mr. Girardin, is, that all power should be centred in 
an elective chief magistrate, who by frequent election should 
be made responsible to the people — in fact, an elective despot- 
ism. Is there an American or Englishman living who would 
call such a political monstrosity freedom, even if the elected 
despot would allow himself to be voted upon a second time ? 
This conception of civil liberty was the very one which Louis 
Napoleon published in his proclamation issued after the coup 
d'etat, and in which he tells the people that he leaves their 
fate in their own hands ! Many Frenchmen voted for him 
and for these fundamental principles of a new government, 
but those who did so, voted for him for the very reason that 
they considered liberty dangerous and inadmissible. This 
definition, then, is peculiarly incorrect. 

Again, it has been said, liberty is the power of doing all 
that we ought to be allowed to do. But who allows ? What 
ought to be allowed ? Even if these questions were answered, 
it would not define liberty. Is the imprisoned homicide free, 
although we allow him to do all that which he ought to be 
allowed to do ? No despot, if not positively insane, would ask 
for more power. It is on the very ground that more freedom 
ought not to be allowed to the subject, for his own benefit and 
the welfare of the empire, that the greatest despots and even 
tyrants have asserted their power; nor does a father desire 
more power over his child, but he does not pretend to con- 
found parental power with the establishment of liberty. 

Bodinus, whom every scholar of political science remembers 
with respect, said that true liberty consists in nothing else 
than the undisturbed enjoyment of one's goods and the absence 
of apprehension that wrong be done to the honor and the life 
of one's self, of one's wife and family. 1 He who knows the 



1 De Republica, lib. xii. c. 6. I have mentioned in my Political Ethics that 
I studied, in the Congress library, the copy of Bodinus which had belonged to 



AND SELF-GOVERNMENT. 33 

times of French history when this jurist wrote his work on 
the republic, sees with compassion what led his mind to form 
this definition ; nor is it denied that undisturbed enjoyment 
of property, as well as personal safety, constitute very im- 
portant objects sought to be obtained by civil liberty; but it 
is the firmly-established guarantees of these enjoyments which 
constitute portions of civil liberty. Haroun al Rashid may 
have allowed these enjoyments, but the Arabians had not 
civil liberty under him. It is very painful to observe that, in 
the middle of the nineteenth century, a writer could be re- 
duced to declare before the Institute of France, in an elaborate 
essay, that this definition of liberty by Bodinus is the best 
ever given. 1 

Montesquieu says : 2 "Philosophical liberty consists in the 
exercise of one's will, or at least (if we must speak of all sys- 
tems) in the opinion according to which one exercises his will. 
Political liberty consists in the security, or at least in the 
opinion which one has of one's security." He continues : 
" This security is never more attacked than in public and pri- 
vate accusations. It is therefore upon the excellence of the 
criminal laws that chiefly the liberty of the citizen depends." 3 

That security is an element of liberty has been acknowl- 
edged ; that just penal laws, and a carefully protected penal 
trial, are important ingredients of civil liberty, will be seen in 
the sequel ; but it cannot be admitted that that great writer 
gives a definition of liberty in any way adequate to the subject. 
We ask at once, What security? Nations frequently rush into 
the arms of despotism for the avowed reason of finding secu- 
rity against anarchy. What else made the Romans so docile 
under Augustus ? Those French who insist upon the " neces- 

President Jefferson, and in which many pencil-marks and notes of the latter are 
found. It will interest many of my readers to hear that this relic has not per- 
ished in the fire which consumed the greater portion of the library. 

1 Mr. Parry, Seances et Travaux de l'Acad. des Sciences Politiques et Morales, 
July, 1855. 

2 Esprit des Lois, xii. 2 : "Of the Liberty of the Citizen." 

3 He goes on treating liberty in a similar manner; for instance, at the begin- 
ning of chapter iv. of the same work. 

3 



34 



ON CIVIL LIBERTY 



sity" of Louis Napoleon, do it on the avowal that anarchy- 
was impending ; but no one of us will say that Augustus was 
the harbinger of freedom, or that the French emperor allows 
the people any enjoyment of liberty. If, however, Montes- 
quieu meant the security of those liberties which Algernon 
Sidney meant when he said, "The liberties of nations are 
from God and nature, not from kings" — in that case he has 
not advanced the discussion, for he does not say in what they 
consist. 

If, on the other hand, the penal law, in which it must be 
supposed Montesquieu included the penal trial, be made the 
chief test of liberty, we cannot help observing that a decent 
penal trial is a discovery in the science of government of the 
most recent date. The criminal trials of the Greeks and 
Romans, and of the middle ages, were deficient both in pro- 
tecting the accused and society, and, without trespassing, we 
may say that in most cases they were scandalous, according to 
our ideas of justice. Must we then say, according to Montes- 
quieu, that liberty never dwelt in those states ? x 

To pass from a great writer to one much his inferior, I shall 
give Dr. Paley's definition of civil liberty. He says : " Civil 
liberty is the not being restrained by any law but what con- 
duces in a greater degree to the public welfare." 2 I should 
hardly have mentioned this definition, but that the work from 
which it is taken is still in the hands of thousands, and that 
the author has obviously shaped and framed it with attention. 
Who decides on what public welfare demands ? Is that no 



1 That a writer of Montesquieu's sagacity and regard for liberty should have 
thus insufficiently defined so great a subject, is nothing more than what frequently 
happens. No man is always himself, and Bishop Berkeley, on Tar Water, 
represents a whole class of weak thoughts by strong minds. I do not only agree 
with what Sir James Mackintosh says in praise of Montesquieu, in his Discourse 
on the Study of the Law of Nature and Nations, but I would add, that no per- 
son can obtain a correct view of the history through which political liberty has 
been led in Europe, or can possess a clear insight into many of its details, with- 
out making himself acquainted with the Spirit of Laws. His work has doubtless 
been of great influence. 

2 Beginning of the fifth chapter of Paley's Political Philosophy. 



AND SELF-GOVERNMENT. 35 

important item of civil liberty ? Who makes the law? Suffice 
it to say that the definition may pass for one of a good .govern- 
ment in general, that is, one which befits the given circum- 
stances ; but it does not define civil liberty. A Titus, a benevo- 
lent Russian Czar, a wise dictator, a conscientious Sultan, a 
kind master of slaves, ordain no restraint but what they think 
is required by the general welfare ; yet to say that the Romans 
under Titus, the Russian, the Asiatic, the slave, is on that 
account in the enjoyment of civil liberty, is such a perversion 
of language that we need not dwell upon this definition, 
surprising even in one who does not generally distinguish 
himself by unexceptionable definitions. 

The first (monarchical) French constitution of September 
3, 1 79 1, 1 says : " Liberty consists in the right to do everything 
that does not injure others. Therefore, the practice of the 
natural rights of each man has no other limits than those 
which secure the other members of society in the enjoyment 
of the same rights. These limits can only be determined by 
law." The last sentence makes all depend on the law; conse- 
quently we must ask again, Who makes the law, and are there 
no limits necessary to the law itself? 

Nothing is more striking in history, it seems to me, than a 
comparison of this declaration and of the " Rights of Men" 
with the British Petition of Right, whether we consider them 
as fruits or as seeds. 

The second (republican) constitution of June 24, 1793, 2 says: 
" Liberty is that faculty according to which it belongs to man 
to do that which does not interfere with the rights of others ; 
it has for its basis, nature; for its rule, justice; for its protec- 
tion, the law ; its moral limit is the maxim, Do not to another 
that which thou dost not wish him to do to thyself. 

This definition sufficiently characterizes itself." 

The Constitution of the United States has no definition of 
liberty. Its framers thought no more of defining it in that 



1 Paragraph four. 

2 Paragraph six of the Declaration of the Rights of Men. 



36 ON CIVIL LIBERTY 

instrument, than people going to be married would stop to 
define what is love. 

We almost feel tempted to close this list of definitions with 
the words with which Lord Russell begins his chapter on 
liberty. He curtly says : " Many definitions have been given 
of liberty. Most of these deserve no notice." 1 

Whatever the various definitions of civil liberty may be, we 
take the term in its usual adaptation among modern civilized 
nations, in which it always means liberty in the political sphere 
of man. We use it in that sense in which freemen, or those 
who strive to be free, love it; in which bureaucrats fear it and 
despots hate it ; in a sense which comprehends what has been 
called public liberty and personal liberty ; and in conformity 
with which all those who cherish and those who disrelish it 
distinctly feel that, whatever its details may be, it always 
means a high degree of untrammeled political action in the 
citizen, and an acknowledgment of his dignity and his impor- 
tant rights by the government which is subject to his positive 
and organic, not only to his roundabout and vague influence. 

This has always been felt ; but more is necessary. We 
ought to know our subject. We must answer, then, this ques- 
tion : In what does civil liberty truly consist ? 



1 Lord John Russell's History of the English Government and Constitution, 
second ed., London, 1825. This prominent and long-tried statesman distin- 
guishes, on page 15, between civil, personal, and political liberty; but even if he 
had been more successful in this distinction than he seems to me actually to have 
been, it would not be necessary to adopt it for our present purpose. 



AND SELF-GOVERNMENT. 37 



CHAPTER III. 

THE MEANING OF CIVIL LIBERTY. 

Liberty, in its absolute sense, means the faculty of willing 
and the power of doing what has been willed, without influ- 
ence from any other source, or from without. It means self- 
determination; unrestrainedness of action. 

In this absolute meaning, there is but one free being, be- 
cause there is but one being whose will is absolutely inde- 
pendent of any influence but that which he wills himself, and 
whose power is adequate to his absolute will — who is almighty. 
Liberty, self-determination, unrestrainedness of action, ascribed 
to any other being, or applied to any other sphere of action, 
has necessarily a relative and limited, therefore an approx- 
imative sense only. With this modification, however, we 
may apply the idea of freedom to all spheres of action and 
reflection. 1 



1 It will be observed that the terms Liberty and Freedom are used here as 
synonymes. Originally they meant the same. The German Freiheit (literally 
Freehood) is still the term for our Liberty and Freedom ; but, as it happened in 
so many cases in our language where a Saxon and Latin term existed for the 
same idea, each acquired in the course of time a different shade of the original 
meaning, either permanently so, or at least under certain circumstances. Liberty 
and Freedom are still used in many cases as synonymous. We speak of the 
freedom as well as the liberty of human agency. It cannot be otherwise, since 
we have but one adjective, namely Free, although we have two nouns. When 
these are used as distinctive terms, freedom means the general, liberty the specific. 
We say, the slave was restored to freedom ; and we speak of the liberty of the 
press, of civil liberty. Still, no orator or poet would hesitate to say freedom of 
the press, if rhetorically or metrically it should suit better. As in almost all 
cases in which we have a Saxon and a Latin term for the same main idea, so in 
this, the first, because the older and original term, has a fuller, moi'e compact, 
and more positive meaning; the latter a more pointed, abstract, or scientific 
sense. This appears still more in the verbs, to free and to liberate. The Ger- 



38 ON CIVIL LIBERTY 

If we apply the idea of self-determination to the sphere of 
politics, or to the state, and the relations which subsist 
between it and the individual, and between different states, 
we must remember that the following points are necessarily 
involved in the comprehensive idea of the state : — 

The state is a society, or union of men — a sovereign society 
and a society of human beings, with an indelible character of 
individuality. The state is, moreover, an institution which 
acts through government, a contrivance which holds the 
power of the whole, opposite to the individual. Since the 
state then implies a society which acknowledges no superior, 
the idea of self-determination applied to it means that, as a 
unit and opposite to other states, it be independent, not dic- 
tated to by foreign governments, nor dependent upon them 
any more than itself has freely assented to be, by treaty and 
upon the principles of common justice and morality, and that 
it be allowed to rule itself, or that it have what the Greeks 
chiefly meant by the word autonomy. 1 The term state, at 



man language has but one word for our Freedom and Liberty, namely Freiheit ; 
and Freithum (literally freedom) means, in some portions of Germany, an estate 
of a Freiherr (baron). In Dutch, the word Vryheid (literally freehood) is free- 
dom, liberty; while Vrydom (literally freedom) means a privilege, an exemption 
from burdens. This shows still more that these words meant originally the same. 

[The greater part of this note, relating to the derivation of several words 
signifying free, and a note a little farther on, relating to the connection between 
frei and friede {free and peace in German), have been omitted, since much of 
what is said is not sanctioned by etymologists of the highest repute. Dr. Lieber 
derives the Greek kXevdspoc from the root e?ivd, come, or go — a derivation which 
J. Grimm and G. Curtius accept, while Benfey, Kirchhoff, and Corssen prefer 
to connect the Greek word with the Latin liber. Liber, again, seems to have 
nothing in common with the German leib, body, as Dr. Lieber supposed, but is 
connected by G. Curtius with 2j.<f>- in TunTOfiat, a rare Greek word denoting to long 
for. There must be a common root, as Grimm thinks, in liber, libet, I bet, and 
in German lieben, our love. Frei, free, does not seem to belong to the same root 
with friede, peace. Comp. Grimm's Deutsch. Worterb. Whatever the deriva- 
tion of this word may be, we may well suppose, as Grimm suggests, that the 
notion of peace is derived from the earlier one of fence, defense, protection. 
Comp. einfrieden, to fence or hedge in.] 

1 Autonomeia is literally translated Self-government, and undoubtedly suggested 
the English word to our early divines. Donaldson, in his Greek Dictionary, 



AND SELF-GOVERNMENT. 



39 



the same time, means a society of men, that is, of beings 
with individual destinies and responsibilities from which arise 
individual rights, 1 that show themselves the clearer and become 
more important, as man advances in political civilization. 
Since, then, he is obliged and destined to live in society, it is 
necessary to prevent these rights from being encroached upon 
by his associates. Since, however, not only the individual 
rights of man become more distinctly developed with advancing 
civilization, but also his social character and all mutual de- 
pendence, this necessity of protecting each individual in his 
most important rights, or, which is the same, of checking each 
from interfering with each, becomes more important with 
every progress he makes. 

Lastly, the idea of the state involving the idea of govern- 
ment, that is, of a certain contrivance with coercing power 
superior to the power of the individual, the idea of self- 
determination necessarily implies protection of the individual 
against encroaching power of the government, or checks 
against government interference. And again, society as a 
unit having its objects, ends, and duties, liberty includes a 
proper protection of government, as well as an efficient con- 
trivance to coerce it to carry out the views of society and to 
obtain its objects. ■ 

We come thus to the conclusion that liberty, applied to 
political man, practically means, in the main, protection or 



gives Self-government as the English equivalent for the Greek Autonomy, but, 
as it has been stated above, it meant in reality independence of other states, a 
non-colonial, non-provincial state of things. I beg the reader to remember this 
fact, for it is significant that the term autonomy retained with the Greeks this 
meaning, facing as it were foreign states, and that Self-government, the same 
word, has acquired with ourselves, chiefly, or exclusively, a domestic meaning, 
facing the relations in which the individual and home institutions stand to the 
state which comprehends them. 

1 The fact that man is in his veiy essence at once a social being and an indi- 
vidual, that the two poles of sociality and individualism must forever determine 
his political being, and that he cannot give up either the one or the other, with 
the many relations flowing from this fundamental point, form the main subject 
of the first volume of my Political Ethics, to which I would refer the reader. 



4 o ON CIVIL LIBERTY 

checks against undue interference, whether this be from in- 
dividuals, from masses, or from government. The highest 
amount of liberty comes to signify the safest guarantees of 
undisturbed legitimate action, and the most efficient checks 
against undue interference. Men, however, do not occupy 
themselves with that which is unnecessary. Breathing is 
unquestionably a right of each individual, proved by his 
existence ; but, since no power has yet interfered with the 
undoubted right of respiration, no one has ever thought it 
necessary to guarantee this elementary right. We advance 
then a step farther in practically considering civil liberty, and 
find that it chiefly consists in guarantees (and corresponding 
checks) of those rights which experience has proved to be 
most exposed to interference, and which men hold dearest and 
most important. 

This latter consideration adds a new element. Freemen 
protect their most important rights, or those rights and those 
attributes of self-determination, which they hold to be most 
essential to their idea of humanity ; and as this very idea of 
humanity comprehends partly some ideas common to men of 
all ages, when once conscious of their humanity, and partly 
other ideas, which differ according to the view of humanity 
itself which may prevail at different periods, we shall find, in 
examining the great subject of civil freedom, that there are 
certain permanent principles met with wherever we discover 
any aspiration to liberty ; and that, on the other hand, it is 
rational to speak of ancient, medieval, or modern liberty, of 
Greek or Roman, Anglican and Gallican, Pagan and Christian, 
American and English liberty. Certain tribes or nations, 
moreover, may actually aim at the same objects of liberty, but 
may have been led, in the course of their history, and accord- 
ing to the variety of circumstances produced in its long course, 
to different means to obtain similar ends. So that this fact, 
likewise, would evolve different systems of civil liberty, either 
necessarily or only incidentally so. Politics are like archi- 
tecture, which is determined by the objects the builder has in 
view, the materials at his disposal, and the desire he feels of 



AND SELF-GOVERNMENT. 4 1 

manifesting and revealing ideas and aspirations in the material 
before him. Civil liberty is the idea of liberty in connection 
with politics, and must necessarily partake of the character 
of, or intertwine itself with, the whole system of politics of a 
given nation. 

This view, however correct, has, nevertheless, misled many 
nations. It is true, that the system of politics must adapt 
itself to the materials and destinies of a nation; but this very 
truth is frequently perverted by rulers who wish to withhold 
liberty from the people, and do it on the plea that the destiny 
of the nation is conquest, or concentrated action in different 
spheres of civilization, with which liberty would interfere. In 
the same manner are, sometimes, whole portions of a people, 
or even large majorities, misled. They seem to think that 
there is a fate written somewhere beyond the nation itself, and 
independent of its own morality, to which everything, even 
justice and liberty, must be sacrificed. It is at least a very 
large portion of the French that thus believes the highest 
destiny of France to consist in ruling as the first power in 
Europe, and who openly say that everything must bend to 
this great destiny. So are many among us, who seem to 
believe that the highest destiny of the United States consists 
in the extension of her territory — a task in which, at best, we 
can only be imitators, while, on the contrary, our destiny is 
one of its own, and of a substantive character. 

At the present stage of our inquiry, however, we have not 
time to occupy ourselves with these aberrations. 

All that is necessary to vindicate at present is, that it is 
sound and logical to speak of eternal principles of liberty, and 
at the same time of ancient and modern liberty, and that there 
may be, and often must be, various systems of civil liberty, 
though they need not, on that account, differ as to the inten- 
sity of liberty which they guarantee. 

That Civil Liberty, or simply Liberty, as it is often called, 
naturally comes to signify certain measures, institutions, guar- 
antees or forms of government, by which people secure or 
hope to secure liberty, or an unimpeded action in those civil 



42 ON CIVIL LIBERTY 

matters, or those spheres of activity which they hold most 
important, appears even from ancient writers. When Aris- 
totle, in his work on politics, speaks of liberty, he means cer- 
tain peculiar forms of government, and he uses these as tests, 
to decide whether liberty does or does not exist in a polity 
which he contemplates at the time. In the Latin language 
Libertas came to signify what we call republic, or a non-regal 
government. Respublica did not necessarily mean the same 
as our word Republic, as our term Commonwealth may mean 
a republic — a commonwealth man meant a republican in the 
English revolution 1 — but it does not necessarily do so. When 
we find in Quintilian the expression, Asserere libertatem reipub- 
licce, we clearly see that respublica does not necessarily mean 
republic, but only when the commonwealth, the system of 
public affairs, was what we now call a republic. Since this, 
however, actually was the case during the best times of Roman 
history, it was natural that respublica received the meaning 
of our word republic in most cases. 

The term liberty had the same meaning in the middle ages, 
wherever popular governments supplanted monarchical, often 
where they superseded aristocratic polities. Liberty and 
republic became in these cases synonymous. 2 



1 The republic — if, indeed, we can say that an actual and bona fide republic 
ever existed in England — was called the State, in contradistinction to the regal 
government. During the Restoration under Charles II., men would say, " In 
the times of the State," meaning the interval between the death of the first 
Charles and the resumption of government by the second. The term State 
acquired first this peculiar meaning under the Presbyterian government. 

2 It is in a similar sense that Freiligrath, a modern German poet, begins one 
of his most fervent songs with the line, Die Freiheit ist die Republik ; that is, 
Freedom is the Republic. On the other hand, I find that Prussia, at the time 
of Frederic the Great, was called, on a few occasions, the Republic, manifestly 
without any reference to the form of government, and meaning simply the com- 
mon or public weal or concern. 



AND SELF-GOVERNMENT. 43 



CHAPTER IV. 

ANCIENT AND MODERN LIBERTY. — ANCIENT, MEDIEVAL, AND 
MODERN STATES. 

That which the ancients understood by liberty differed 
essentially from what we moderns call civil liberty. Man 
appeared to the ancients in his highest and noblest character 
when they considered him as a member of the state or as a 
political being. Man could rise no higher in their view. 
Citizenship was in their eyes the highest phase of humanity. 
Aristotle says in this sense, the state is before the individual. 
With us the state, and consequently the citizenship, remain 
means — all-important ones, indeed, but still means — to obtain 
still higher objects, the fullest possible development of hu- 
manity in this world and for the world to come. There was 
no sacrifice of individuality to the state too great for the 
ancients. The greatest political philosophers of antiquity 
unite in holding up Sparta as the best regulated common- 
wealth — a communism in which the individual was sacrificed 
in such a degree, that to the most brilliant pages of all history 
she has contributed little more than deeds of bravery and 
salient anecdotes of stoic heroism. Greece has rekindled 
modern civilization, in the restoration of letters. The de- 
generate keepers of Greek literature and art, who fled from 
Constantinople when it was conquered by the Turks, and 
settled in Western Europe, were nevertheless the harbingers 
of a new era. So great was Grecian knowledge and civiliza- 
tion even in this weakened and crippled state ! Yet in all that 
intellectuality of Greece which lighted our torch in the fifteenth 
and sixteenth centuries, there is hardly a single Lacedaemonian 
element. 

Plato, when he endeavors to depict a model republic, ends 



44 



ON CIVIL LIBERTY 



with giving us a communism, in which even individual mar- 
riage is destroyed for his higher classes. 1 

We, on the other hand, acknowledge individual and primor- 
dial rights, and seek one of the highest aims of civil liberty in 
the most efficient protection of individual action, endeavor, 
and rights. I have dwelt upon this striking and instructive 
difference at length in my work on Political Ethics, 2 where 
I have endeavored to support the opinion here stated by his- 
torical facts and passages of the ancients. I must refer the 
reader, therefore, to that part of the work ; but there is a 
passage which seems to me so important for the present in- 
quiry, as well as for another which will soon occupy our 
attention, that, unable to express myself better than I have 
done in the mentioned work, I must beg leave to insert it 
here. It is this: — 

" We consider the protection of the individual as one of the 
chief subjects of the whole science of politics. The ttoXitixt) 
kniffrrj/n), or political science of the ancients, does not occupy 
itself with the rights of the individual. The ancient science 
of politics is what we would term the art of government, that 
is, ' the art of regulating the state, and the means of pre- 
serving and directing it.' The ancients set out from the idea 
of the state, and deduce every relation of the individual to it 
from this first position. The moderns acknowledge that the 
state, however important and indispensable to mankind, how- 
ever natural, and though of absolute necessity, still is but a 
means to obtain certain objects, both for the individual and for 
society collectively, in which the individual is bound to live 
by his nature. The ancients had not that which the moderns 
understand by jus naturale, or the law which flows from the 
individual rights of man as man, and serves to ascertain 



1 It is a striking fact that nearly all political writers who have indulged in 
creating Utopias — I believe all without exception — have followed so closely the 
ancient writers, that they rose no higher than to communism. It may be owing 
in part to the fact that these writers composed their works soon after the restora- 
tion of letters, when the ancients naturally ruled the minds of men. 

2 Chapter xiii. of the second book. 



AND SELF-GOVERNMENT. 45 

how, by means of the state, those objects are obtained which 
justice demands for every one. On what supreme power rests, 
what the extent and limitation of supreme power ought to be, 
according to the fundamental idea of the state, — these ques- 
tions have never occupied the ancient votaries of political 
science. 

" Aristotle, Plato, Cicero, do not begin with this question. 
Their works are mainly occupied with the discussion of the 
question, Who shall govern? The safety of the state is their 
principal problem ; the safety of the individual is one of our 
greatest. No ancient, therefore, doubted the extent of supreme 
power. If the people possessed it, no one ever hesitated in 
allowing to them absolute power over every one and every- 
thing. If it passed from the people to a few, or was usurped 
by one, they considered, in many cases, the acquisition of 
power unlawful, but never doubted its unlimited extent. 
Hence in Greece and Rome the apparently inconsistent, yet 
in reality natural, sudden transitions from entirely or partially 
popular governments to absolute monarchies ; while in modern 
states, even in the absolute monarchies, there exists a certain 
acknowledgment of a public law of individual rights, of the 
idea that the state, after all, is for the protection of the 
individual, however ill conceived the means to obtain this 
object may be. 

" The idea that the Roman people gave to themselves, or 
had a right to give to themselves, their emperors, was never 
entirely abandoned, though the soldiery arrogated to them- 
selves the power of electing the masters. * * * Yet the 
moment that the emperor was established on his throne, no 
one doubted his right to the absolute supreme power, with 
whatever violence it was used. 1 



1 This was written in the year 1837. Since then, events have occurred in 
France which may well cause the reader to reflect whether, after all, the author 
was entirely correct in drawing this peculiar line between antiquity and modern 
times. All I can say in this place is, that the political movements in France 
resemble the dire imperial times of Rome just so far as the French, or rather the 
Napoleonists among them, step out of the broad path of modern political civili- 



46 ON CIVIL LIBERTY 

" Liberty, with the ancients, consisted materially in the de- 
gree of participation in government, ' where all are in turn 
the ruled and the rulers.' Liberty, with the moderns, consists 
less in the forms of authority, which are with them but means 

to obtain the protection of the individual and the undisturbed 
action of society in its minor and larger circles. 'EXeu&epta, 
indeed, frequently signifies, with the Greek political writers, 
equality ; that is, absolute equality; and foo-nje, equality, as well 
as iXeu&epia, are terms actually used for democracy, 1 by which 
was understood what we term democratic absolutism, or un- 
limited despotic power in the demos, which, practically, can 
only mean the majority, without any guarantee of any rights. 
It was, therefore, perfectly consistent that the Greeks aimed 
at perfect liberty in perfect equality, as Aristotle states, not 
even allowing a difference on account of talent and virtue; so 
that they give the -dj.oc, the lot, as the true characteristic of 
democracy. They were consistently led to the lot ; in seeking 
for liberty, that is, the highest enjoyment and manifestation of 
reason and will, or self-determination, they were led to its 
very negation and annihilation — to the lot, that is, to chance. 
Not only were magistrates, but even generals and orators 
determined by lot." 2 

Had the ancients possessed other free states than city-states, 
they would have been forced out of this position ; but there 
were no states in antiquity, if we take the term in the adapta- 
tion in which we use it when we mean sovereign political 
societies spreading over extensive territories and forming an 
organic legal whole. Even the vast monarchies of ancient 



zation, actually courting a comparison with imperial Rome, and that this renewed 
imperial period will be nothing but a phase in the long chain of political revul- 
sions and ruptures of France. The phase will not be of long duration, and, after 
it will have passed, it will serve as an additional proof of our position. 

1 Plato, Gorg., 71. 

2 For the evidence and proof I must refer to the original. [Dr. Lieber is in 
an error in classing generals among the officers chosen at Athens by lot. Comp. 
K. F. Hermann, Gr. Staatsalterth.,i. $ 149; Schomann, Gr. Alterth., i. 422; and 
Tittmann, Staatsverfass., who gives a list of appointments to office by lot and by 
che'.rotonia, pp. 311-318.] 



AND SELF-GOVERNMENT. 47 

Asia were conglomerated conquests with much of what has 
just been called a city-state. Nineveh, Babylon, were mighty 
cities that swayed over vast dominions as mistresses, but did 
not form part of a common state in the modern term. 

In the middle ages liberty appears in a different phase. 
The Teutonic spirit of individual independence was one -of the 
causes which led to the feudal system, and frequently pros- 
pered under it in rank disorder. There was no state proper 
in the middle ages ; the feudal system is justly called a mere 
system. It was no state; and medieval liberty appears in the 
shape of liberties, of franchises, singly chartered, separately 
conquered, individually arrogated — each society, party, or 
person obtaining as much as possible, unmindful of others, and 
each denying to others as much as might be conveniently done. 
The term freedom, therefore, came distinctly to signify, in the 
middle ages, not exactly the amount of free action allowed to 
the citizen or guaranteed to the person who enjoyed it, but the 
exemption from burdens and duties imposed upon others or 
exacted in former times. Liberty had not yet acquired a sub- 
stantive meaning, although it need not be mentioned that then, 
as well as in ancient times, the principle which made noble 
hearts throb for liberty and independence was the same that 
has made the modern martyrs of liberty mount the scaffold 
with confidence and reliance on the truth of their cause. 

I am here again obliged to refer to the Political Ethics, 
where I have treated of this peculiarity of the middle ages in 
the chapter on the duties of the modern representative, contra- 
distinguished from the medieval deputy. 

The nearer we approach to modern times the more clearly 
we perceive two movements, which, at first glance, would ap- 
pear to be destructive the one to the other. On the one hand 
states, in the present sense of the term, are formed. There 
is a distinct period in the history of our race, which may be 
aptly called the period of nationalization. Tribes, fragments, 
separate political societies, are united into nations, and polit- 
ically they appear more and more as states. It is one of the 
many fortunate occurrences which have fallen to England in 



48 ON CIVIL LIBERTY 

the course of her history, that she became nationalized at a 
comparatively very early period. The feudal system was 
introduced at a late period, and as a royal measure. The 
king made the Norman-English nobility. The nobility did 
not make the king. The English nobility, therefore, could 
not resist the national movement and consolidation of the 
people into a nation, as it did on the continent, and the 
crown thus not being obliged to gather all possible strength, 
in order to be able to subdue the baronial power, had not the 
opportunity to pass over into the concentrated principate, 
which was one of the political phases in every other part of 
Europe. 1 

On the other hand we observe that the priceless individual 
worth and value which Christianity gives to each human being, 
by making him an individually responsible being, with the 
highest duties and the highest privileges, together with ad- 
vancing civilization, in a great measure produced by itself — 
the Teutonic spirit of personal independence, connected not a 
little with the less impressionable, and therefore more tena- 
cious, and sometimes dogged character of the Teutonic — all 
these combinedly, developed more and more the idea of indi- 
vidual rights, and the desire of protecting them. 



1 The history of no nation reminds the student so frequently of the fact that 
" His ways are not our ways," as that of England. Many events which have 
brought ruin elsewhere, served there, in the end, to obtain greater liberty and a 
higher nationality. The fact that the Norman nobility in England was the 
creature of the king — for this, doubtless, it was, although they came as Norman 
noblemen to the field of Hastings — is one of these remarkable circumstances. 
The English civil wars ; the fact that most of England's monarchs have been 
indifferent persons, and that after Alfred the Great but one truly great man has 
been among her kings ; the inhospitable climate, which was treated by the people 
like a gauntlet thrown down by nature; that they developed that whole world 
of domestic comfort and well-being, known nowhere else, and of such impor- 
tant influence upon all her political life ; her limited territoiy ; her repeated 
change of language ; her early conquests, — these are some items of a list which 
might easily be extended. 

Since this note was originally written, a work in praise of Henry VIII. has 
attracted sufficient attention to make it necessary for me to state that the author 
means William III. as the great monarch after Alfred. 



AND SELF-GOVERNMENT. 49 

These two facts have materially influenced the development 
of modern liberty, that liberty which we call our own. The 
progress we value so much was greatly retarded on the conti- 
nent by an historical process which was universal among the 
nations of Europe, excepting those of Sclavonic origin, be- 
cause they had not yet entered the lists of civilization. 

The feudal system, of far greater power on the continent 
than in England, interfered with the process of nationalization 
and the formation of states proper. The people gradually 
rose to a higher position, a higher consciousness of rights, 
and the inhabitants of the cities generally found the baronial 
element hostile to them. The consequence was, that the 
crowns and the people united to break the power of the 
baron. But in the same degree as the struggle was tenacious, 
and the crown had used stronger power to subdue the feudal 
lord, it found itself unshackled when the struggle was over, 
and easily domineered over both the people and the lords. 
Then came the time of absorbing regal power, of centraliza- 
tion and monarchical absolutism, of government-states, as 
Niebuhr calls them. The liberties of the middle ages were 
gone ; the principles of self-government were allowed to exist 
nowhere ; and we find, at the present period only, the whole 
of the European continent, with the exception of Russia, as 
a matter of course, engaged in an arduous struggle to regain 
liberty, or rather to establish modern freedom. Everywhere 
the first ideas of the new liberty were taken from England, 
and, later, from the United States. The desire of possessing 
a well-guaranteed political liberty and enjoyment of free 
action was kindled on the European continent by the example 
of England. The course which we observe in France, from 
Montesquieu, who, in his brilliant work on the Spirit of Laws, 
has chiefly England in view as a model, to the question at the 
beginning of the first French Revolution, whether the princi- 
ples of British liberty should be adopted, was virtually repeated 
everywhere. The representative principle, the trial by jury, 
the liberty of the press, taxation and appropriations by the 
people's representatives, the division of power, the habeas 

5 



5 o ON CIVIL LIBERTY 

corpus principle, publicity, and whatever else was prominent 
in that liberty peculiar to the Anglican race, whether it had 
originated with it, or had been retained by it when elsewhere 
it had been lost in the general shipwreck of freedom, was 
longed for by the continental people, insisted on, or struggled 
for. 

It is well, then, to ask ourselves, In what does this Anglican 
liberty consist ? The answer is important, in a general point 
of view, as well as because it is the broad foundation and 
frame-work of our own American liberty. 



AND SELF-GOVERNMENT. 51 



CHAPTER V. 

ANGLICAN LIBERTY. 

In order to ascertain in what this peculiar system of civil 
liberty consists, we must examine those charters of the whole 
Anglican race, which belong to "the times when governments 
chartered liberty," and to those "when the people charter 
governments." We must observe what principles, measures, 
and guarantees were most insisted upon in periods most dis- 
tinguished by an active spirit of liberty, of opposition to 
encroaching power, or of a desire to prune public power so as 
to make it in future better harmonize with the claims of indi- 
vidual liberty. We must see what it is that the people of 
England and the people of America in great political periods 
have solemnly declared their rights and obligations. We 
must study the periods of a vigorous development of liberty, 
and we must weigh Magna Charta, the Petition of Right, and 
the Bill of Rights — the three statutes which Lord Chatham 
called the Bible of the English Constitution. We must inquire 
into the public common law of England, and the common law 
as it has developed itself on this side of the Atlantic; and 
especially into the leading cases of political and constitutional 
importance that have been decided in England and the United 
States. 1 We must ponder our great federal pact, with the 
contemporaneous writers on this constitution, and the debates 



1 A chronological table of the leading cases in England and the United States 
by which great constitutional principles or essential individual rights have been 
settled and sown like a spreading, self-increasing plant, would be highly in- 
structive, and show how much we owe to the growth of liberty, and how much 
this growth is owing to the husbanding of practical cases in the spirit of 
freedom. 

51 



52 .ON CIVIL LIBERTY 

which led to its adoption after the failure of the original articles 
of confederation, as well as the special charters which were 
considered peculiarly favorable to liberty, such as many of the 
colonies possessed, out of which the United States arose. We 
must attentively study the struggles in which the people waged 
their all to preserve their liberties or to obtain new ones, and 
those periods which, with reference to civil liberty, may be 
called classical. We must analyze the British and our own 
revolutions, and compare them with the political revolutions 
of other nations, and we must study not only the outward 
events, or the ultimate measures, but we must trace their 
genesis, and ascertain how and why these things came about, 
and what the principles were for which the chief men engaged 
in the arduous task contended. We must mark what it is 
that those nations wish to introduce among themselves, that 
are longing for freedom similar to that which we enjoy. 
We must test which of the many institutions peculiar to our 
tribe have proved, in the course of time, as real props of 
freedom, or most prolific in shooting forth new branches. 
We must read the best writers on law, history, and political 
philosophy with reference to these subjects, and observe the 
process of spreading liberty. We must note which are the 
most fruitful principles of Anglican self-government in the 
widening colonies north and south of the equator; and 
examine our own lives as citizens of the freest land, as well 
as the great process of expansion of liberty with ourselves. 
We ought clearly to bring before our minds those guarantees 
which invariably are the main points of assault when the 
attempt is made to batter the ramparts of civil liberty and 
bring the gallant garrison to surrender. And, lastly, we 
ought to study the course of despotism ; for the physiologist 
learns as much from pathology as from a body in vigorous 
health. 

We call this liberty Anglican freedom, not because we think 
that it ought to be restricted to the Anglican race, or will or 
can be so ; but simply because it has been evolved first and 
chiefly by this race, and because we must contradistinguish it 



AND SELF-GOVERNMENT, 53 

from Gallican liberty, as the sequel will show. 1 Nor is it 
maintained that all that is included in Anglican liberty is of 
especial Anglican origin. Liberty is one of the wreaths of 
humanity, and in all liberty there must be a large fund of uni- 
versal humanity, as all cultivated languages must agree in em- 
bodying the most important principles of intellectual analysis 
and combination ; and as Grecian architecture does not contain 
exclusively what the Greeks originated, and is not, on account 
of its very humanity, restricted to Greece, still, we call it 
Greek architecture, and we do so with propriety ; for it was in 
Greece that that column and capital were developed which are 
found everywhere with civilized man, have passed over from a 
pagan world into Christian civilization, and are seen wherever 
the Bible is carried. 

Now, what we call Anglican liberty, are the guarantees 



1 In the year 1848 I published, in an American journal, a paper headed 
Anglican and Gallican Liberty, in which I indicated several views which have 
been further developed in the present work. A distinguished German criminalist 
and publicist did me the honor of publishing a German translation of this paper, 
in which, however, he says that what I have called Anglican liberty is more 
generally called Germanic liberty. This is an error. I allow that the original 
Teutonic spirit of individual independence, distinguished as it is from the Celtic 
disposition of being swayed by masses, and from the consequent proclivity 
toward centralization in politics, religion, and literature, and a pertain inability 
to remain long in the opposition, or to stand aloof of a party, — I allow that this 
original Teutonic spirit largely enters into what I have termed Anglican liberty, 
but this is a system of civil liberty which has developed itself independent of all 
other Teutonic nations, has been increasing while nearly all the other Teutonic 
nations lost their liberty, and of which, unfortunately, the Germans, who ought 
to be supposed the most Germanic of the Germanic tribes, have nothing, except 
what may remain of the late attempts at engrafting anew principles or guarantees 
of liberty on their polities, which had become more and more a copy of French 
centralization. This is not the place to discuss the subject of so-called Germanic 
liberty. All that is necessary here to state is, that what is called Anglican 
liberty consists, as was said before, in a body of guarantees which, as an entire 
system, has been elaborated by the Anglican race, and is peculiar to them unless 
imitated by others. Many a detail of Anglican liberty existed long ago in other 
parts of Europe, and was enjoyed at times in a higher degree than by the Eng- 
lish at that period. But it withered or ran wild, and never became a part of a 
constitutional organism. What has become of the Aragonese Justicia or chief 
justice? What of the Hungarian excessive self-government of the county? 



54 



ON CIVIL LIBERTY 



which our race has elaborated, as guarantees of those rights 
which experience has shown to be most exposed to the danger 
of attack by the strongest power in the state, namely, the 
executive, or as most important to a frame of government 
which will be least liable to generate these dangers, and also 
most important to the essential yet weaker branches of govern- 
ment. It consists in the civil guarantees of those principles 
which are most favorable to a manly individual independence 
and ungrudged enjoyment of individual humanity ; and those 
guarantees which insure the people, meaning the totality of the 
individuals as a unit, or the nation, against being driven from 
the pursuit of those high aims which have been assigned to it 
by Providence as a nation, or as a united people. Where the 
one or the other is omitted, or exclusively pursued, there is no 
full liberty. If the word people be taken as never meaning 
anything else than a unit, a widely extended and vigorous 
action of that unit may exist indeed — blinding ambition may 
be enjoyed, but it is no liberty ; if, on the other hand, the 
term people is never taken in any other sense than a mere 
term of brevity, and for the impossible enumeration of all in- 
dividuals, without inherent connection, the consequence must 
be a sejunctive egotism which loses the very power of protect- 
ing the individual rights and liberties. 

What is guarantee for one is check to the other, and if 
liberty consists in mutual guaranteeing of certain rights of 
actions and endeavors, it is clear that, correspondingly, it 
consists in certain mutual checking, which, again, cannot exist 
without corresponding mutual toleration. We find therefore, 
in history, that no people who have not fairly learned to bear 
with one another can enjoy liberty. The absence of tolera- 
tion is the stigma of absolutisms the establishment of " the 
opposition" is the glory of freedom. Freedom allows of 
variety ; the tyrant, whether one or a multitude, calls heretic 
at every one who thinks or feels differently. 1 



1 Bunsen, in his Signs of the Times, calls mutual toleration the true evidence 
of a firm Christian faith and the only valid evidence before God and men. 
He speaks of religion; but the remark, with proper modification, is applicable 



AND SELF-GOVERNMENT. 55 

These guarantees, then, as we acknowledge them in the 
period of civil development in which we live, and as far as they 
are common to the whole Anglican race, and, if of a more 
general character, are still inseparably interwoven with what 
is peculiar to the race, we call Anglican liberty. These 
guarantees and checks I now proceed to enumerate. 



in all spheres. Strong conviction of right and truth and reality early rises to 
respectful toleration — a generous acknowledgment of the rights as well as the 
opinions of others. Feebleness of conviction or consciousness of feebleness 
makes tyrannical and vindictive. And, let us add, this is one of the many points 
where true liberty and gentlemanliness meet in requirements and effects. 



56 ON CIVIL LIBERTY 



CHAPTER VI. 

NATIONAL INDEPENDENCE. PERSONAL LIBERTY. 

I. It is impossible to imagine liberty in its fulness, if the 
people as a totality, the country, the nation, whatever name 
may be preferred, or its government, is not independent of 
foreign interference. The country must have what the Greeks 
called autonomy. This implies that the country must have 
the right, and, of course, the power, of establishing that govern- 
ment which it considers best, unexposed to interference from 
without or pressure from above. No foreigner must dictate ; 
no extra-governmental principle, no divine right or " principle 
of legitimacy," must act in the choice and foundation of the 
government ; no claim superior to that of the people's, that is, 
superior to national sovereignty, must be allowed. 1 This inde- 
pendence or national self-government further implies that, the 
civil government of free choice or free acquiescence being 
established, no influence from without, besides that of freely 
acknowledged justice, fairness, and morality, must be admitted. 
There must then be the requisite strength to resist when neces- 
sary. While the author is setting down these remarks, the news 
is reaching us of the manly declaration made in the British Com- 
mons, by the minister of foreign affairs, Lord Palmerston, that 
the united calls of all the continental powers would be utterly 
insufficient to give up or to drive from the British territory 
those political exiles who have sought an asylum on English 
soil, and of the ready support given by the press to the spokes- 
man of the nation. Even the French, so far as they are 
allowed at the present untoward conjuncture to express them- 
selves, applaud this declaration as a proof of British freedom. 



1 Political Ethics, chapter on Sovereignty. 



AND SELF-GOVERNMENT. 57 

The Helvetic Cantons, on the other hand, are forced to yield 
to the demands even of an Austrian government; and the 
worried Republic of Switzerland, so far as this goes, cannot be 
said to be free. The history of the nineteenth century, but 
especially that of our own age, is full of instances of inter- 
ference with the autonomy of nations or states. Italy, Ger- 
many, especially Hessia; Spain, Hungary, furnish numerous 
instances. Cases may occur, indeed, in which foreign inter- 
ference becomes imperative. All we can then say is, that the 
people's liberty so far is gone, and must be recovered. No 
one will maintain that interference with Turkish affairs at the 
present time is wrong in those powers who resist Russian in- 
fluence in that quarter, but no one will say either that Turkey 
enjoys full autonomy. The very existence of Turkey depends 
upon foreign sufferance. 

Since the preceding paragraph was written, historical illus- 
trations have occurred, too important to be appended in a note. 
The same statesman who, as minister of foreign affairs, in the 
year 1853, made the manly declaration concerning political 
fugitives, allowed himself, as prime minister, in the year 1858, 
to propose a law in the House of Commons, at the instigation 
of the emperor of the French, by which the fomenting of con- 
spiracies in England against foreign princes should be visited 
with a higher punishment, or be made punishable if it was 
not already so. The English Commons indignantly rejected 
such a bill proposed at that very time ; the premier lost his 
place, and from that historical jury-box of Middlesex proceeded 
a verdict of not guilty when a Frenchman residing in England 
was tried for having been an accessory before the fact, of Orsini, 
who had attempted to assassinate Napoleon III. The verdict 
was plainly on the ground that Englishmen would not be 
dictated to in their legislation by a despotic foreign govern- 
ment, and as such was hailed with joy by every man on the 
European continent who wishes well to liberty. 1 It was a 



1 The case is The Queen vs. Bernard. [It is, however, in itself right to punish 
conspiracies against foreign powers, when their base of operations is within our 



58 ON CIVIL LIBERTY 

similar spirit, no doubt, which lately caused many Americans to 
take so warm a part against the reported attempts of English 
vessels to search American traders. 

On the other hand, it must be remembered that this un- 
stinted autonomy is greatly endangered at home by interfering 
with the domestic affairs of foreigners. The opinion, there- 
fore, urged by Washington, that we should keep ourselves 
aloof from foreign politics, is of far greater weight than those 
believe who take it merely with reference to foreign alliances 
and ensuing wars. The interference* need not necessarily 
proceed from government. Petitions affecting foreign public 
measures or institutions, and coming from large bodies, or 
even committees sent to express the approval of a foreign 
government, of which we have had a recent and most remark- 
able instance, 1 are reprehensible on the same ground. 



territory, because they are crimes committed on our soil, over which no other 
state has control, and also because they may involve us in unpleasant relations 
with foreigners. But in the case mentioned in the text the demand for new 
legislation was made in the spirit of intimidation. — The English claim to search 
our vessels in 1858 was dictated by the desire to ascertain whether a given vessel 
was really of foreign nationality, or an English vessel under false colors.] 

1 The address and declaration of four thousand British merchants, presented in 
the month of April, 1853, to the emperor of the French, will forever remain 
a striking proof of British liberty; for in every other European country the 
government would have imprisoned every signer, if, indeed, the police had not 
nipped the petition in the bud ; and it will also forever remain a testimony how 
far people can forget themselves and their national character when funds are be- 
lieved to be endangered, or capital is desired to be placed advantageously. But 
I have alluded to it in the text as an instance only of popular interference with 
foreign governments, doubtless the most remarkable instance of the kind on 
record. Whether the whole proceeding was "not far short of high treason," as 
Lord Campbell stigmatized it in the House of Lords, may be left undecided. It 
certainly would have been treated as such during some periods of English 
history, and must be treated by all right-minded men of the present period as a 
most unworthy procedure. 

To this must now be added the record of the tone which pervaded the address 
of the lord mayor and aldermen of London to Count Walewski, French Ambas- 
sador, in the early part of the year 1858, and the manner in which it was re- 
ceived, when Orsini had attempted to assassinate the count's master and cousin, 
having obtained his explosive weapons in England. The reply of the ambassa- 
dor was submitted to, although rising to such a degree of impertinence that 



AND SELF-GOVERNMENT. 59 

It is one of the reasons why a broadcast liberty and national 
development was so difficult in the middle ages, that the pope, 
in the times of his highest power, could interfere with the 
autonomy of states. I do not discuss here whether this was 
not salutary at times. Gregory VII. was a great, and, possi- 
bly, a necessary man ; but where civil liberty is the object, as it 
is now with civilized nations, this medieval interference of the 
pope would be an abridgment of it, just as much as the Aus- 
trian or French influence in the States of the Church is an 
abridgment of their independence at present. 

It is a remarkable feature in the history of England, that 
even in her most catholic times the people were more jealous 
of papal interference by legates or other means, than any 
other nation, unless we except the Germans when their em- 
perors were in open war with the popes. This was, however, 
transitory, while in England intercourse with the papal see 
was legally restricted and actually made penal. 1 

2. Civil liberty requires firm guarantees of individual 
liberty, and among these there is none more important than 
the guarantee of personal liberty, or the great habeas corpus 
principle, and the prohibition of "general warrants" of arrest 
of persons. 

To protect the individual against interference with per- 
sonal liberty by the power-holder is one of the elementary 
requisites of all freedom, and one of the most difficult problems 
to be solved in practical politics. If any one could doubt the 
difficulty, history would soon convince him of the fact. The 
English and Americans safely guard themselves against illegal 
arrest ; but a long and ardent struggle in England was neces- 
sary to obtain this simple element, and the ramparts around 
personal liberty, now happily existing, would soon be disre- 
garded, should the people, by a real prava negligentia malo- 
rum, ever lose sight of this primary requisite. 

The means by which Anglican liberty secures personal 
liberty are threefold : the principle that every man's house is 



it was necessary, at a later period, diplomatically to explain and partially to 
unsay it. 



6o ON CIVIL LIBERTY 

his castle, the prohibition of general warrants, and the habeas 
corpus act. 

Every man's house is his castle. It is a principle evolved 
by the common law of the land itself, and is exhibited in a yet 
stronger light in the Latin version, which is, Domus sua cuique 
est tutissimum refugium, and Nemo de domo sua extrahi debet, 
which led the great Chatham, when speaking on general war- 
rants, to pronounce that passage with which now ever} 7 English 
and American school-boy has become familiar through his 
Reader. " Every man's house," he said, " is called his castle. 
Why ? Because it is surrounded by a moat, or defended by a 
wall ? No. It may be a straw-built hut ; the wind may whistle 
around it ; the rain may enter it, but the king cannot." z 

Accordingly, no man's house can be forcibly opened, or he 
or his goods be carried away after it has thus been forced, ex- 
cept in cases of felony, and then the sheriff must be furnished 
with a warrant, and take great care lest he commit a trespass. 
This principle is jealously insisted upon. It has been but 
recently decided in England, that although a house may have 
been unlawfully erected on a common, and every injured com- 
moner may pull it down, he is nevertheless not justified in 
doing so if there are actually people in it. 

There have been nations, indeed, enjoying a high degree of 
liberty, without this law maxim ; but the question in this place 
is even less about the decided advantages arising to freemen 
from the existence of this principle, than about the sturdiness 
of the law and its independent development, that could evolve 



1 In many countries, and even among hardly civilized tribes, it has been a rule 
that no one should enter a man's house without the consent of the owner. 
Missionaries tell us that the Yarriba people in Central Africa do not allow their 
king to enter a house, even to arrest a criminal, without the consent of the head 
of the family. So we are very often told that the trial by jury was known before 
England had its present name ; but the question of importance is, how far a 
principle is developed, how securely it is guaranteed, how essential a part of a 
general system it is, and how strong it is to resist when public power should 
choose to interfere with it. The Chinese have no censorship, but this absence of 
censorship is not liberty of the press. The Romans cared very little about the 
religion of their subjects, (so that they were not Christians,) but this was not con- 
stitutional toleration or freedom of worship. 



AND SELF-GOVERNMENT. 6 1 

and establish this bold maxim. It must be a manly race of 
freedom-loving people, whose own common law could deposit 
such fruitful soil. For let it be observed that this sterling 
maxim was not established, and is not maintained, by a dis- 
junctive or a law-defying race. The Mainots considered their 
Lacedaemonian mountain fastnesses as their castles too, during 
the whole Turkish reign in Greece ; the feudal baron braved 
authority and law in his castle ; the Mino-tze 1 have never been 
subdued by the Tartar dynasty of China, and defy the govern- 
ment in their mountain fastnesses to this day, much as the 
Highlanders of Scotland did before the battle of Culloden ; 
but the English maxim was settled by a highly conjunctive, a 
nationalized people, and at the same time when law and general 
government was extending more and more over the land. It is 
insisted on in the most crowded city the world has ever seen, 
with the same jealousy as in a lonely mountain dwelling; it is 
carried out, not by retainers and in a state of war made per- 
manent, as Essex tried to do when he was arrested, but by 
the law, which itself has given birth to it. The law itself 
says : Be a man, thou shalt be sovereign in thy house. It is 
this spirit which brought forth the maxim, and the spirit which 
it necessarily nourishes, that makes it important. 

It is its direct antagonism to a mere police government, its 
bold acknowledgment of individual security opposite to gov- 
ernment, it is its close relationship to self-government, which 
give so much dignity to this guarantee. To see its value, we 
need only throw a glance at the continental police, how it 
enters, at night or in the day, any house or room, breaks open 
any drawer, seizes papers or anything it deems fit, without any 
other warrant than the police hat, coat, and button. 

Nor must we believe that the maxim is preserved as a piece 
of constitutional virtu. As late as the month of June, 1853, 
a bill was before the House of Commons, proposing some 
guarantee against property of nuns and monks being too 
easily withdrawn from relations, and that certain officers 



In the province of Kouang-Si, containing mountainous regions. 



62 ON CIVIL LIBERTY 

should have the right to enter nunneries, from eight a.m. to 
eight o'clock p.m., provided there was strong suspicion that 
an inmate was retained against her will. The leading minister 
of the crown in the Commons, Lord John Russell, opposed 
the bill, and said : " Pass this bill, and where will be the 
boasted safety of our houses ? It would establish general 
tyranny." 

The prohibition of " general warrants." The warrant is 
the paper which justifies the arresting person to commit so 
grave an act as depriving a citizen, or alien, of personal liberty. 
It is important, therefore, to know who has the right to issue 
such warrants, against whom it may be done, and how it must 
be done, in order to protect the individual against arbitrary 
police measures. The Anglican race has been so exact and 
minute regarding this subject, that the whole theory of the 
warrant may be said to be peculiarly Anglican, and a great 
self-grown institution. "A warrant," the books say, "to de- 
prive a citizen of his personal liberty should be in writing, 
and ought to show the authority of the person who makes it, 
the act which is authorized to be done, the name or descrip- 
tion of the party who is authorized to execute it, and of the 
party against whom it is made ; and, in criminal cases, the 
grounds upon which it is made." The warrant should name 
the person against whom it is directed; if it does not, it is 
called a general warrant, and Anglican liberty does not allow 
it. 1 Where it is allowed there is police government, but not 
the government for freemen. It is necessary that the person 
who executes the warrant be named in it. Otherwise the in- 
jured citizen, in case of illegal arrest, would not know whom 



1 A warrant to apprehend all persons suspected, or all persons guilty, etc. etc., 
is illegal. The person against whom the warrant runs ought to be pointed out. 
The law on this momentous subject was laid down by Lord Mansfield in the 
case of Money vs. Leach, 3 Burrow's Rep. 1742, where the "general warrant" 
which had been in use since the revolution, directing the officers to apprehend 
the " authors, printers, and publishers" of the famous No. 45 of the North 
Briton, was held to be illegal and void. [Comp. May, Constit. Hist., ii. chap. 
II.] 



AND SELF-GOVERNMENT. 63 

he should make responsible ; but if the person be named, he 
is answerable, according to the Anglican principle that every 
officer remains answerable for the legality of all his acts, no 
matter who directed them to be done. Indeed, we may say 
the special warrant is a death-blow to police government. 1 

The Constitution of the United States demands that " no 
warrants shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized." 2 

The warrant is held to be so important an element of civil 
liberty, that a defective warrant is considered by the common 
law of England and America one of the reasons which reduce 
the killing of an officer from murder to manslaughter. The 
reader will see this from the following passage, which I copy 
from a work of authority both here and in England. I give 
the passage entire, because it relates wholly to individual lib- 
erty, and I shall have to recur to it. 3 The learned jurist says : 

"Though the killing of an officer of justice, while in the 
regular execution of his duty, knowing him to be an officer, 
and with intent to resist him in such exercise of duty, is mur- 
der, the law in that case implying malice, yet where the 
process is defective or illegal, or is executed in an illegal 
manner, the killing is only manslaughter, unless circumstances 
appear, to show express malice ; and then it is murder. Thus, 
the killing will be reduced to manslaughter, if it be shown in 
evidence that it was done in the act of protecting the slayer 
against an arrest by an officer acting beyond the limits of his 
precinct ; or, by an assistant, not in the presence of the officer 
or, by virtue of a warrant essentially defective in describing 



1 [For arrests which officers or even private persons are allowed by English 
law to make without warrant, see Blackstone's Com., iv. chap. 21, pp. 292, 293, 
and the notes of the annotators on his text.] 

2 The reader will find a copy of the Constitution of the United States in the 
Appendix. 

3 This is section 123 of vol. iii. of Dr. Greenleaf on Evidence, which I have 
copied by the permission of my esteemed and distinguished friend. I have left 
out all the legal references. The professional lawyer is acquainted with the book, 
and the references would be important to him alone. 



64 ON CIVIL LIBERTY 

either the person accused, or the offence ; or, where the party 
had no notice, either expressly, or from the circumstances of 
the case, that a lawful arrest was intended, but, on the con- 
trary, honestly believed that his liberty was assailed without 
any pretence of legal authority ; or, where the arrest attempted, 
though for a felony, was not only without warrant, but with- 
out hue and cry, or fresh pursuit, or, being for a misdemeanor 
only, was not made flagrante delicto ; or, where the party was, 
on any other ground, not legally liable to be arrested or im- 
prisoned. So, if the arrest, though the party were legally 
liable, was made in violation of law, as, by breaking open the 
outer door or window of the party's dwelling-house, on civil 
process; for such process does not justify the breaking of the 
dwelling-house, to make an original arrest ; or, by breaking 
the outer door or window, on criminal process, without pre- 
vious notice given of his business, with demand of admission, 
or something equivalent thereto, and a refusal." 

The Habeas Corpus Act. This famous act of parliament 
was passed under Charles II., and is intended to insure to an 
arrested person, whether by warrant or on the spot, that at his 
demand he be brought, by the person detaining him, before a 
judge, who may liberate him, bail him, or remand him, no 
matter at whose command or for what reasons the prisoner is 
detained. It allows of no " administrative arrests," as extra- 
judicial arrests are called in France, or imprisonment for 
reasons of state. The habeas corpus act further insures a 
speedy trial, 1 a trial by the law of the land, and by the lawful 
court — three points of the last importance. It moreover 
guarantees that the prisoner know for what he is arrested, and 
may properly prepare for trial. The habeas corpus act did by 
no means first establish all these principles, but numberless 



1 Long imprisonments before trial are customary means resorted to on the 
continent of Europe in order to harass the subjects. Guerrazzi and other liberals 
were sentenced, in Tuscany, on the first of July, 1853, after having been im- 
prisoned for fifty months before ever being brought to trial. It is useless to 
mention more instances; for long imprisonment before trial is the rule in abso- 
lute governments whenever it suits them. 



AND SELF-GOVERNMENT. 6$ 

attempts to secure them had failed, and the act may be con- 
sidered as the ultimate result of a long struggle between law 
and the individual on the one hand, and power on the other. 
The history of this act is interesting and symptomatic. 1 

The Constitution of the United States prohibits the sus- 
pension of the habeas corpus act,. " unless when, in cases of 
rebellion or invasion, the public safety may require it ;" and 
Alexander Hamilton says, in the "Federalist:" 2 "The estab- 
lishment of the writ of habeas corpus, the prohibition of ex 
post facto laws and of titles of nobility, to which we have no 
corresponding provisions in our constitution," (therefore per- 
sonal liberty, or protection and safety, supremacy of the law 
and equality,) " are perhaps greater securities to liberty than 
any it contains ;" and, with reference to the first two, he justly 
adds the words of "the judicious Blackstone." 3 

All our State Constitutions have adopted these important 
principles. The very opposite of this guarantee was the 
"lettre de cachet," or is the arbitrary imprisonment at pres- 
ent in France. 

A witness of singular weight, as to the essential importance 
of Anglican personal liberty, must not be omitted here. The 
emperor Napoleon III., who, after Orsini's attempt to assassi- 
nate him, obtained the " law of suspects," according to which 
the French police, or administration, (not the courts of justice,) 
may transport a "suspect" for seven years, wrote, in earlier 
days, with admiration of English individual liberty. 4 



1 The Appendix contains the habeas corpus act. 

2 Paper No. lxxxiv. 

3 Blackstone's Commentaries, vol. i. page 136. Note, in the " Federalist. " 

4 In 1854 a complete edition of the emperor's works was published. In that 
edition was a chapter headed De la Liberte individuelle en Angleterre. In it 
are the following passages : 

" No inhabitant of Great Britain (excepting convicts) can be expelled from 
the United Kingdom. Any infraction of this clause (the habeas corpus act) 
would be visited with the severest penalties." He remarks that we have no 
public prosecutor, the attorney-general interfering only on extraordinary oc- 
casions; and if criminals sometimes escape justice, personal liberty is the less 
endangered. "In England, authority is never influenced by passion; its pro- 
ceedings are always moderate, always legal;" there is "no violation of the citi- 

5 



66 ON CIVIL LIBERTY 

There was in England, until within a recent date, a remark- 
able deviation from the principles of personal liberty — the 
impressment. The crown assumed the right to force any 
able-bodied man on board a man-of-war, to serve there as 
sailor. There has always been much doubt about this arro- 
gated privilege of the crown, and, generally, sailors only were 
taken, chiefly in times of war and when no hands would freely 
enlist. Every friend of liberty will rejoice that the present 
administration has taken in hand a new plan of manning the 
navy, by which this blemish will be removed. 1 



zen's domicile, so common in France ;" family correspondence is inviolate, and 
no passports bar the most perfect freedom of traffic, — ■" passports, the oppressive 
invention of the Committee of Public Safety, which are an embarrassment and 
an obstacle to the peaceable citizen, but which are utterly powerless against those 
who wish to deceive the vigilance of authority." A law deprived of the general 
support of public opinion would be a mere scrap of paper. 

" It suffices for us to note this fact, that in France, where such jealousy is shown 
of everything which touches equality and national honor, people do not attach 
themselves so religiously to personal liberty. The tranquillity of the citizen may 
be disturbed, his domicile maybe violated, he maybe made to undergo for whole 
months a preventive imprisonment, personal guarantees may be despised, and a 
few generous men shall raise their voices, but public opinion will remain calm 
and impassible as long as no political passion is awakened. There lies the 
greatest reason for the violence of authority ; it can be arbitrary because there is 
no curb to check it. In England, on the contrary, political passions cease the 
moment a violation of common right is committed ; and this, because England 
is a country of legality, and France has not yet become so ; because England is 
a country solidly constituted, while France struggles by turns for forty years be- 
tween revolutions and counter-revolutions, and the sanctity of principle has yet 
to be created there." 

1 The plan has not yet been published, but one of the ministers, Sir James 
Graham, said in the Commons, in April, 1853 : 

" The first point on which all the authorities consulted were agreed is, that 
whatever measures are taken, must rely for success on the voluntary acceptance 
of them by the seamen, and that any attempt to introduce a coercive mode of 
enlistment would be followed by mischievous consequences and failure." The 
difficult question does not yet seem to be wholly settled (1859). It seems diffi- 
cult to obtain a sufficient number of seamen to man the fleet in emergencies. 
In France seamen are drafted, as soldiers are for the army. [For the history of 
impressment, for the army as well as for the navy, down to i860, comp. May, 
u. s., ii. 259 et seq. Until 1872 no law abolishing this practice was passed; but 
the practice itself seems to be in abeyance.] 



AND SELF-GOVERNMENT. 67 



CHAPTER VII. 

BAIL. — PENAL TRIAL. 

3. Connected with the guarantees of personal liberty, treated 
of in the foregoing chapter, is the bail. 

The law of all nations not wholly depraved in a political 
point of view, adopts the principle that a man shall be held 
innocent until proved by process of law to be otherwise. In 
fact, the very idea of a trial implies as much. Theoretically, 
at least, this is acknowledged by all civilized nations, although 
often the way in which judicial affairs are conducted, and in 
many countries the very mode of trying itself, are practical 
denials of the principle. But even in the freest country there 
is this painful yet unavoidable contradiction, that while we 
hold every person innocent until by lawful trial proved to be 
guilty, we must arrest a person in order to bring him to a 
penal trial ; and, although by the law he is still considered 
innocent, he must be deprived of personal liberty until his 
trial can take place, which cannot always follow instantly 
upon the arrest. To mitigate this harshness as much as pos- 
sible, free nations guarantee the principle of bailing in all 
cases in which the loss of the bailed sum may be considered 
as a more serious evil than the possible punishment. The 
amount of bail must depend upon the seriousness of the charge, 
and also upon the means of the charged person. If judges 
were allowed to demand exorbitant bail, they might defeat the 
action of this principle in every practical case. It was enacted, 
therefore, in the first year of William and Mary, 1 and has 
been adopted in all our constitutions, that no " excessive bail" 
shall be required. The nature of the case admits of no more 



William and Mary, stat. ii. c. 2. 



68 ON CIVIL LIBERTY 

exact term; but, with an impeachment hanging over the judges 
should the principle thus solemnly pronounced be disregarded, 
it has worked well for the arrested person. Indeed, there are 
frequent cases in the United States in which this principle is 
abused and society is endangered, because persons are bailed 
who are under the heaviest charges, and have thus an oppor- 
tunity of escape if they know themselves guilty. As this can 
take place only with persons who have large sums at their dis- 
posal, either in their own possession or in that of their friends, 
and as liberty demands first of all the foundation of justice, it is 
evident that this abuse of bail works as much against essential 
liberty as the proper use of bail guarantees it. We ought, 
everywhere, to return to the principle of distinguishing trans- 
gressions of the law into bailable offences and offences for the 
suspected commission of which the judge can take no bail. 
These are especially those offences for the punishment of 
which no equivalent in money can be imagined — for instance, 
death or imprisonment for life, — and those offences which put 
the offender into the possession of the sum required for the 
bail. 

It has been objected to the bail that it works unjustly. It 
temporarily deals with so precious a thing as personal liberty 
according to possession of wealth : but it must be remembered 
that the whole arrest before trial is an evil of absolute neces- 
sity, and the more we can limit it the better. 

Liberty requires bail, and that it be extended as far as 
possible ; and it requires likewise that it be not extended to 
all offences, and that substantial bail only be accepted. 

4. Another guarantee, of the last importance, is a well- 
secured penal trial, hedged in with an efficient protection of 
the indicted person, the certainty of his defence, a distinct 
indictment charging a distinct act, the duty of proving this 
act on the part of government, and not the duty of proving 
innocence on the part of the prisoner, the fairness of the trial 
by peers of the prisoner, the soundness of the rules of evidence, 
the publicity of the trial, the accusatorial (and not the inquisi- 
torial) process, the certainty of the law which is to be applied, 



AND SELF-GOVERNMENT. 69 

together with speed and utter impartiality, and an absolute 
verdict. It is moreover necessary that the preparatory pro- 
cess be as little vexatious as possible. 

When a person is penally indicted, he individually forms 
one party, and society, the state, the government, forms the 
other. It is evident that unless very strong and distinct 
guarantees of protection are given to the former, that he be 
subjected to a fair trial, and that nothing be adjudged to him 
but what the law already existing demands and allows, there 
can be no security against oppression. For government is a 
power, and, like every power in existence, it is desirous of 
carrying its point — a desire which increases • in intensity the 
greater the difficulties are which it finds in its way. 

Hence it is that modern free nations ascribe so great an 
importance to well-regulated and carefully elaborated penal 
trials. Montesquieu, after having given his definitions of what 
he calls philosophical liberty, and of political liberty, which, 
as we have seen, he says, consists in security, continues thus : 
" This security is never more attacked than in public and 
private accusations. It is, therefore, upon the excellence of 
the criminal laws that chiefly the liberty of the citizen de- 
pends." x Although we consider this opinion far too general, 
it nevertheless shows how great a value Montesquieu set on a 
well-guarded penal trial, and he bears us out in considering it 
an essential element of modern liberty. The concluding words 
of Mr. Mittermaier's work on the Penal Process of England, 
Scotland, and the United States, are : " It will be more and 
more acknowledged how true it is that the penal legislation 
is the key-stone of a nation's public law." 2 

This passage of the German criminalist expresses the truth 
more accurately than the quoted dictum of Montesquieu. For, 
although we consider the penal trial and penal law in general 
intimately connected with civil liberty, it is nevertheless a fact 



1 Esprit des Lois, xii. 2 ; " Of the Liberty of the Citizen." 

2 This comprehensive and excellent work was published in Germany, Erlangen, 
1851. 



70 ON CIVIL LIBERTY 

that a sound penal trial is invariably one of the last fruits of 
political civilization, partly because it is one of the most diffi- 
cult subjects to elaborate, and because it requires long expe- 
rience to find the proper mean between a due protection of the 
indicted person and an equally due protection of society; partly 
because it is one of the most difficult things in all spheres of 
action to induce irritated power to limit itself, as well as to 
give to an indicted person the full practical benefit of, the 
theoretic sentence, easily pronounced like all theory, that the 
law holds every one innocent until proved not to be so. The 
Roman and Athenian penal trials were sadly deficient. The 
English have allowed counsel to the penally indicted person 
only within our memory, while they had been long allowed in 
the United States. 1 The penal trial in the Netherlands was 
imperfect, when, nevertheless, the Netherlander are allowed 
on all hands to have enjoyed a high degree of civil liberty. It 
is one of the most common facts in history that a nation is 
more or less advancing in nearly all the branches of civiliza- 
tion, while the penal trial and the whole penal law remains 



1 [/.<?., in cases of felony no counsel was allowed, unless upon collateral facts, 
or some point of law ; and so in cases of petty larceny. But when a person was 
indicted for high treason, he had, as early as 7 Wm. III., the privilege of counsel, 
which was granted also to persons impeached for the same crime by a statute of 
20 Geo. III. In 1836, by statute of 6 and 7 Wm. IV., this privilege was granted 
in trials for felony. See Blackst., iv., chap. 27, p. 355, and May, u.s., ii. 558.] 
It must not be forgotten, hoAvever, that deficient as the penal trial of England 
without counsel for the defendant was, it contained many guarantees of protection, 
especially publicity, a fixed law of evidence, with the exclusion of hearsay evi- 
dence, the jury and the neutral position of the judge in consequence of the trial 
by jury, and the strictly accusatorial character of the trial, with the most rigid 
adhesion to the principle of trying a person upon the indictment alone, so that the 
judge could be, and in later times really had been, the protector of the prisoner. 
Had the trial been inquisitorial instead of accusatorial, the absence of counsel for 
defence would have been an enormity. To this enormity Austria has actually 
returned since the beginning of this century. The code promulgated by Joseph 
gave counsel, or a " defensor," to the prisoner; but, although the process remained 
inquisitorial, the defensor was again disallowed. The late revolution re-estab- 
lished him, but whether he has been discontinued again of late I do not know. 
Nor can it be of very great importance in a country in which the " state of siege" 
and martial law seem to be almost permanent. 



AND SELF-GOVERNMENT. 7 1 

almost stationary in its barbarous inconsistency. The penal 
trial of France, up to the first revolution, remained equally 
shocking to the feelings of humanity and to the laws of 
logic. 

The reason of this apparent inconsistency is that, in most 
cases, penal trials affect individuals who do not belong to the 
classes which have the greatest influence upon legislation. 
This point is especially important in countries where the penal 
trial is not public. People never learn what is going on in the 
houses of justice. Another and great reason is that generally 
lawyers by profession are far less interested in the penal branch 
of the law than in the civil. This, again, arises from the fact 
that the civil law is far more varied and complicated, conse- { 
quently more attractive to a judicial mind, that the civil cases 
are far more remunerative, and form the large bulk of the 
administration of justice. How much the difficulty to be 
solved constitutes the attraction for the lawyer, we may see 
from the fact that very few professional lawyers take an 
interest in the punishment itself. A penal case has attraction 
for them so long as it is undecided, but what imprisonment 
follows, if imprisonment has been awarded, interests them 
little. Very few lawyers have taken a lead in the reform of 
criminal law and in prison discipline, Sir Samuel Romilly 
always excepted. 

Among the points which characterize a fair and sound penal 
trial according to our advancement in political civilization, we 
would designate the following : the person to be tried must be 
present (and, of course, living) ; x there must be no intimidation 



1 Penal trials of absent persons are common in countries where the principles 
of the Roman law prevail. They are common in France; and the church has 
even tried deceased persons for heresy, found them guilty, and confiscated the 
property which had belonged to the heretic. The presence of the indicted per- 
son at his trial is a right plain to every one as soon as once pronounced, but 
power acknowledges it at a late period only, and always has a tendency to depart 
from it, whether this power be a monarch or his government, or an impassioned 
populace. Several of the almost solemn procedures of lynch law which have 
occurred of late in some of our Western States, and according to which absent 
persons were warned never to return to their domicile, are instances in point. 



7 2 ON CIVIL LIBERTY 

before the trial, or attempts by artifice to induce the prisoner 
to confess, — a contrivance which protects the citizen even 
against being placed too easily into a state of accusation; the 
fullest possible realization of the principle that every man is 
held innocent until proved to be otherwise, and bail ; a total 
discarding of the principle that the more heinous the imputed 
crime is, the less ought to be the protection of the prisoner, 
and, on the contrary, the adoption of the reverse ; a distinct 
indictment, and the acquaintance of the prisoner with it, suffi- 
ciently long before the trial, to give him time for preparing 
the defence ; that no one be held to incriminate himself; the 
accusatorial process, with jury and publicity, therefore an oral 
trial and not a process in writing ; counsel or defensors of the 
prisoner ; a distinct theory or law of evidence, and no hearsay 
testimony ; a verdict upon evidence alone and pronouncing 
guilty or not guilty ; a punishment in proportion to the offence 
and in accordance with common sense and justice ; ■ especially 
no punitory imprisonment of a sort that necessarily must 
make the prisoner worse than he was when he fell into the 
hands of government, nor cautionary imprisonment before 
trial, which by contamination must advance the prisoner in his 
criminality ; and that the punishment adapt itself as much as 
possible to the crime and criminality of the offender; 2 that 
nothing but what the laAv demands or allows to be inflicted, 3 



1 The idea expressed by Dr. Paley regarding this point is revolting. He says, 
in his Political Philosophy, that we may choose between two systems, the one 
with fair punishments always applied, the other with very severe punishments 
occasionally applied. He thus degrades penal law, from a law founded above 
all upon strict principles of justice, to a mere matter of prudential expediency, 
putting it on a level with military decimation. 

2 Lieber's Popular Essay on Subjects of Penal Law, and on Uninterrupted 
Solitary Confinement at Labor, etc.; Philadelphia, 1838. I have there treated 
of this all-important subject at some length. 

3 Tiberius Gracchus erected a temple in honor of Liberty, with a sum obtained 
for fines. If the fines were just, there was no inconsistency in thus making penal 
justice build a temple of freedom, for liberty demands security and order, and, 
therefore, penal justice. 

On the other hand, what does a citizen reared in Anglican liberty feel when he 
reads in a simple newspaper article in a French provincial paper, in 1853, the fol- 



AND SELF-GOVERNMENT. 



73 



and that all that the law demands be inflicted — no arbitrary 
injudicious pardoning, which is a direct interference with the 
true government of law. 

The subject of pardoning is so important, especially in our 
country, that I have deemed it advisable to add a paper on 
pardoning, which the reader will find in the Appendix. 

Perhaps there are no points so important in the penal trial 
in a free country, as the principle that no one shall be held to 
incriminate himself, that the indictment as well as the verdict 



lowing? " The minister of general police has just decided that Chapitel, sen- 
tenced by the court to six months' imprisonment for having been connected with 
a secret society, and Brayet, sentenced for the same offence to two months' im- 
prisonment, shall be transported to Cayenne for ten years, after the expiration of 
their sentence !" 

The decree of the eighth of December, 1851, not a law, but a mere dictatorial 
order, upon which ten years' transportation is added by way of " rider" to a 
few months' imprisonment adjudged by the courts of law, is this : 

" Article 1. Every individual placed under the surveillance of the high police, 
who shall be found to have broken his assigned limits of residence, may be trans- 
ported, by way of general safety, to one of the penitentiary colonies, at Cayenne 
or in Algeria. 

" The duration of transportation shall be five years or less, and ten years or 
more." (We translate literally and correctly, whatever the reader may think of 
this sentence, which would be very droll, were it not very sad.) 

" Article 2. The same measure shall be applicable to individuals found to be 
guilty of having formed part of a secret society." 

The French of the last sentence is, individus reconntis coupable d^ avoir fait 
partie d^une societe secrete. This reconnus (found, acknowledged) is of a sinister 
import. For the question is, Found by whom ? Of course not only by the 
courts, for finding a man guilty by process of law is in French convaincre. The 
reconnaitre, therefore, was used in order to include the police or any one else in 
authority. So that we arrive at this striking fact : The despot may add an enor- 
mous punishment to a legal sentence, as in the cited case, or he may award it, or 
rather the minister of police under him may do it, without trial, upon mere police 
information. Two hundred years ago, the English declared executive transpor- 
tation beyond the seas, or deportation, to be an unwarranted grievance ; and here 
we have it again, no doubt in imitation of the Roman imperial times, (the saddest 
in all history,) in the middle of the nineteenth century. 

So far the note as written in 1853. In 1858 Orsini made his attempt of assas- 
sinating the emperor of the French, when a far more stringent law was passed, 
and the principle of "suspicion," so flourishing as an element of criminality in 
the first French revolution, was revived. 



74 ON CIVIL LIBERTY 

must be definite and clear,' and that no hearsay evidence be 
admitted. Certainly none are more essential. 

A great lawyer and excellent man, Sir Samuel Romilly, 
justly says, that if the ascertaining of truth and meting out of 
justice is the object of the trial, no possible objection can be 
taken against it on principle. But there is this difficulty, that 
if judges themselves question, they become deeply interested 
in the success of their own cross-examinations, they become 
biased against the prisoner, should he thwart them, or turn 
questions into ridicule. Romilly makes this remark after 
having actually seen this result in France, where it is always 
done, (witness Mad. Lafarge's trial, or any French trial of im- 
portance,) and certainly often with success. 1 * Or let us observe 
English prosecutions some centuries back. 

In the inquisitorial process, it is not only done, but the pro- 
cess depends upon the questioning of the prisoner. 

There are other dangers connected with it. An accused 
man cannot feel that perfect equanimity of mind which alone 
might secure his answers against suspicion. I know from per- 
sonal experience how galling it is to see your most candid 
answers rewarded with suspicions and renewed questions, if 
the subject is such that you cannot possibly at once clear up 
all doubts. It ought never to be forgotten that the accused 
person labors under considerable disadvantages, merely from 
the fact that he is accused. Bullying and oppressive judges 
were common in England when the principle was not yet 
settled that no one shall be held to incriminate himself. The 
times of the Stuarts furnish us with many instances of alterca- 
tions in the court, between the judge and the prisoner, and of 
judicial browbeating, to the detriment of all justice. 

The trial of Elizabeth Gaunt, the aged and deaf Baptist 
woman, who had given a night's rest under her roof to a 
soldier of Monmouth's dispersed army, under Chief-Justice 
Jones, 2 and was convicted of treason on the sole testimony of 



1 Sir Samuel Romilly's Memoirs, vol i. p. 315, 2d ed., London, 1840. 

2 Phillipps's State Trials, vol. ii." 214, et seq., and, indeed, in many parts of 
the work. 



AND SELF-GOVERNMENT. 75 

the wretch whom she sheltered that she had knowledge of his 
being a rebel, may serve as an instance. 

It is, among other reasons, for this very fact of prisoners on 
trial being asked by the French judge about the fact at issue, 
his whereabouts at the time, his previous life, and a number of 
things which throw suspicion on the prisoner, although uncon- 
nected with the question at issue, that Mr. Beranger says, in 
a work of just repute: "We," that is, the French, " have 
contented ourselves to place a magnificent frontispiece before 
the ruins of despotism ; a deceiving monument, whose aspect 
seduces, but which makes one freeze with horror when entered. 
Under liberal appearances, with pompous words of juries, 
public debates, judicial independence, individual liberty, we 
are slowly led to the abuse of all these things, and the disre- 
gard of all rights ; an iron rod is used with us, instead of the 
staff of justice." 1 

There are peculiar reasons against examining the prisoner 
in public trials, and many peculiar to the secret trial. 
Although it cannot be denied, that often the questioning of 
the prisoner may shorten the trial and lead to condign convic- 
tion, which otherwise may not be the result, it is nevertheless 
right that most, perhaps all our state constitutions have adopted 
this principle. It is just; it is dignified; it is fair. The 
government prosecutes ; then let it prove what it charges. So 
soon as this principle is discarded, we fall into the dire error 
of throwing the burden of proving innocence wholly or par- 
tially on the prisoner ; while, on the contrary, all the burden 
ought to lie on the government, with all its power, to prove 
the charged facts. Proving an offence and fastening it on the 
offender, is one important point in the penal trial ; but the 
method how it is done is of equal importance. The Turkish 
cadi acknowledges the first point only ; yet what I have stated 
is not only true with reference to the jural society, it is even 
true in the family and the school. 

It is an interesting fact for the political philosopher that, 



1 Beranger, De la Justice Criminelle de France, Paris, 1818, page 2. 



y6 ON CIVIL LIBERTY 

while the Anglican race thus insists on the principle of non- 
self-incrimination, the whole Chinese code for that people 
under a systematic mandarinism is pervaded even by the prin- 
ciple of self-accusation for all, but especially for the mandarins. 

The principle that on government lies the burden of proving 
the guilt, leads consistently to the other principle, that the 
verdict must be definite and absolute. Hence these two im- 
portant facts : The verdict must be guilty or not guilty, and 
no absolutio ab instantia, as it is called in some countries of 
the European continent; that is to say, no verdict or decision 
which says, According to the present trial we cannot find you 
guilty, but there is strong suspicion, and we may take you up 
another time ; l nor any " not proven," as the Scottish trial 
admits of, ought to be permitted. " Not proven," does not 
indeed allow a second trial, but it expresses : You are free, 
although we have very strong suspicion. Secondly, the main 
principle leads to the fact that no man ought to be tried twice 
for the same offence. This is logical, and is necessary for the 
security of the individual. A person might otherwise be 
harassed by the government until ruined. Repeated trials for 
charges which the government knows very well to be un- 
founded, are a common means resorted to by despotic execu- 
tives. Frequently such procedures have led the persecuted 
individual to compound with government rather than lose all 
his substance. 

The Anglican race, therefore, justly makes it an elementary 
principle of its constitutional law, that " no man shall be tried 
twice for the same offence." 

I have said that a fair trial for freemen requires that the 
preparatory steps for the trial be as little vexatious as possible. 
They must also acknowledge the principle of non-incrimination. 
This is disregarded on the whole of the European continent 
The free range of police power, the mean tricks resorted to by 
the "instructing" judge or officer, before the trial, in order to 



1 The reader will find in Appendix III. a paper on the subject of some conti- 
nental trials, and the admission of half and quarter proof and proportional 
punishment. 



AND SELF-GOVERNMENT. 



77 



bring the prisoner to confession, are almost inconceivable, 1 
and they are the worse, because applied before the trial, when 
the prisoner is not surrounded by those protections which the 
trial itself grants. With reference to this point, and in order 
to modify what I have stated regarding Greek penal trials, I 
wish to mention the interesting fact that " the prosecutor, in 
Athens, who failed to make good his charge, incurred certain 
penalties, unless he obtained at least one-fifth of the votes in 
his favor. In public suits, he forfeited one thousand drachmae 
to the state, and could never again institute a similar suit. 
The same punishment was incurred if he declined to proceed 
with the case. In private suits, he paid the defendant one-sixth 
of the amount of the disputed property, as a compensation for 
the inconvenience he had suffered in person or character." 2 

Sir Samuel Romilly had the intention of proposing, in a 
similar spirit, a bill by which an acquitted prisoner, having 
been prosecuted for felony, should be compensated by the 
county, at the discretion of the court, for loss of time and the 
many evils endured. Indeed, he thought that far more ought 
to be done. 3 Leave was given to bring in the compensation 
bill, but it was afterwards withdrawn. It is evident that the 
great difficulty would lie in the fact that the discretion of the 
judge would establish at once a distinction between the ver- 
dicts, similar to that produced by the Scottish "not guilty" and 
" not proven." To compensate, however, all acquitted persons 
would be very mischievous, if we consider how many persons 
are acquitted who nevertheless are guilty. Indeed, it might 
well be asked whether the fear of burdening the county with 



1 This may be amply seen in the reports on French trials, and, among other 
works, in Feuerbaclrs Collection of German Criminal Trials. 

2 See K. F. Hermann, Gr. Staatsalterth., \ 144. 

3 Memoirs of the Life of Sir Samuel Romilly, 2d ed., London, 1840, vol. ii. 
p. 235. Strangely enough, there is an English law, 25 George II., ch. 36, accord- 
ing to which prosecutors are to have the expenses of their prosecution reim- 
bursed, and a compensation afforded them for their trouble and loss of time. 
This is evidently to induce people freely to prosecute ; but no guarantee is given 
on the other hand against undue prosecution, and a compensation for the trouble 
and loss of time of the acquitted person. 



78 ON CIVIL LIBERTY 

the payment of the compensation would not, in some cases, 
induce the jury to find more easily a verdict of guilty. 

The professional reader may think that I have not suffi- 
ciently dwelt upon some essential points of a sound penal 
trial, for instance, on publicity, or the independence of counsel. 
He will find, however, that these subjects are treated of in 
other parts of this work, to which it was necessary to refer 
them. 



AND SELF-GOVERNMENT. yg 



CHAPTER VIII. 



HIGH TREASON. 



5. That penal trial which is the most important with refer- 
ence to civil liberty, and in which the accused individual 
stands most in need of peculiar protection by the law, is the 
trial for treason. The English law does not know the term 
"political offence," of which the trial for treason is, commonly, 
the highest in importance. Political Offence is a term belong- 
ing to the modern law of some countries of the European con- 
tinent, 1 and it was doubtless trials for offences of this character, 
which those jurists and publicists had partly in view, who, the 
reader will recollect, point out a well-guarded penal trial, 
almost as the sole characteristic of civil liberty. 

If a well-guarded penal trial in general forms an important 
element of our liberty, because the individual is placed opposite 
to public power, a carefully organized trial for treason is em- 
phatically so. In the trial for treason the government is no 
longer theoretically the prosecuting party, as it may be said 
it is in the case of theft or assault, but government is the 
really offended, irritated party, endowed at the same time with 
all the force of the government, to annoy, persecute, and often 



1 The American reader ought to keep in mind that the term Political Offence is 
now a well-established term on the continent of Europe. It is used in legisla- 
tion ; thus the late French republic abolished capital punishment for political 
offenders, and in the treaty of extradition between France and Spain, " political 
offenders" are excepted, and not subject to extradition. It would, nevertheless, 
be difficult to give a definition of the term Political Offence sufficiently clear to 
be acceptable to a law-abiding administration of justice. Indeed, we may say 
that it was natural this term should have presented itself, in the course of things, 
on the continent of Europe, and it is equally natural, and is full of meaning, 
that the English law does not know it. 



80 ON CIVIL LIBERTY 

to crush. Governments have, therefore, been most tenacious 
in retaining whatever power they could in the trial for treason; 
and, on the other hand, it is most important for the free citizen 
that in the trial for treason he should not only enjoy the 
common protection of a sound penal trial, but far greater 
protection. In despotic countries we always find that the little 
protection granted in common criminal trials is withheld in 
trials for treason ; in free countries, at least in England and 
the United States, greater protection is granted, and more 
caution demanded, in trials for treason than in the common 
penal process. The trial for treason is a gauge of liberty. 
Tell us how they try people for treason, and we will tell you 
whether they are free. It redounds to the glory of England 
that attention was directed to this subject from early times, 
and that guarantees were granted to the prisoner indicted for 
treason, centuries before they were allowed to the person 
suspected of a common offence ; and to that of the United 
States, that they plainly defined the crime of treason, and 
restricted it to narrow limits, in their very constitution. This 
great charter says, Article III., Section III. : 

" I. Treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort. No person shall be convicted 
of treason, unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. 

" 2. Congress shall have power to declare the punishment 
of treason ; but no attainder of treason shall work corruption 
of blood, or forfeiture, except during the life of the person 
attainted." 

Whether political societies, not so fortunately situated as 
ourselves, yet equally prizing civil liberty, might safely restrict 
the crime of treason to such narrow limits as the wise and 
bold framers of our constitution have done, is a subject which 
belongs to a branch of political science that does not occupy 
us here ; but it may be asserted that several cases have 
actually occurred in the United States, in which all nations 
except the American would have considered the provisions of 



AND SELF-GOVERNMENT. 8 1 

our constitution insufficient, and in which nevertheless they 
have been found adequate. 

We may consider the American law of high treason as the 
purest in existence, and it shows how closely the law of 
treason is connected with civil liberty. Chief-Justice Mar- 
shall said: "As there is no crime which can more excite and 
agitate the passions of men than treason, no charge demands 
more from the tribunal before which it is made a deliberate 
and temperate inquiry. Whether the inquiry be directed to 
the fact or to the law, none can be more solemn, none more 
important to the citizen or to the government ; none can more 
affect the safety of both." x 

All constitutions of the different American states, which men- 
tion treason, have the same provision. Those that say nothing 
special about it, have the same by law, and in conformity with 
the principles which the respective constitutions lay down 
regarding penal trials. 2 None admit of retrospective laws, of 
legislative condemnations of individuals, or of attainders. 

The course which the development of the law of treason takes 
in history is this : At first there exists no law of treason, be- 
cause the crime is not yet separated from other offences, as 
indeed the penal and civil laws are not separated in the earliest 
periods. The Chinese code, so minute in many respects, mixes 
the two branches, and debtors are treated as criminal offenders, 
reminding us, in this particular, of the early Roman law. When 
first treason comes to be separated from the other offences, it 
is for the twofold purpose of inflicting more excruciating pains, 



1 The Writings of John Marshall, p. 42. Ex parte Bollman and Swartwout. 
The rebellion of the Mormons in 1858 has occurred since the remarks in the 
text were written. It would seem sound reasoning and statesmanship, that the 
narrower the limits are to which the public law restricts treason, the more neces- 
sary it becomes to execute the law fully within those limits. 

2 Judge Story says : " A state cannot take cognizance, or punish the offence, 
{i.e. treason against the United States,) whatever it may do in relation to the 
offence of treason, committed exclusively against itself, if indeed any case can, 
under the constitution, exist, which is not at the same time treason against the 
United States." Chap. 28, vol. iii. of Commentaries on the Constitution of the 
United States. 

6 



82 ON CIVIL LIBERTY 

and of withholding from the trial the poor protection which is 
granted to persons indicted for common offences. The dire 
idea of a crimen exceptum gains ground. The reasoning, or 
rather unreasoning, is that the crime is so enormous that the 
criminal ought not to have the same chances of escape, thus 
assuming that the accused, yet to be proved to be a criminal, 
is in fact a criminal, and forgetting, as has- been indicated 
before, that the graver the accusation is, and the severer 
therefore the punishment, in case of established guilt, may be, 
the safer and more guarded ought to be the trial. It is a 
fearful inconsistency, very plain when thus stated, yet we find 
that men continually fall into the same error, even in our 
own days. How often is lynch law resorted to in our country, 
on the very plea that the crime, still a suspected one, is so in- 
famous that the regular course of law is too slow or too doubt- 
' ful ! The same error prevailed regarding witchcraft. The 
pope declared it a crimen exceptum — too abominable to be 
tried by common process. Protestant governments followed 
the example. 1 

At the same time we find that, at the period of which we 
are now speaking, the law of treason is vastly extending, and 
all sorts of offences, either because considered peculiarly 
heinous, or because peculiarly displeasing to the public power, 
are drawn within the meaning of treason. A list of all the 
offences which at some time or other have been considered to 
amount to treason, from the crime of " offended divine 
majesty," (crimen laesae majestatis divinse,) in which stealing 



x I seize upon this opportunity of advising every young reader of this work to 
study with earnest attention the history of the witch-trials, forming, possibly, 
with the African slave-trade, the greatest aberrations of our Cis-Caucasian race. 
Such works as Soldan's History of the Witch-Trials [Gesch. der Hexenprocesse, 
Stuttgard, 1843] exhibit the psychology of public and private passion, of crime 
and criminal law, in so impressive and instructive a manner, that the sad course 
of crime and error having been run through, it ought not to stand on record in 
vain for us. We learn, in history and in psychology, as in nature, to understand 
the principles, motives, and laws of minor actions, by the changes and convul- 
sions on a large sca^; and the vast changes and revulsions by the microscopic 
observation of the minute reality around us. 



AND SELF-GOVERNMENT. 



33 



from a church was included, to the most trivial common 
offences, and which I have made out for my own use, would 
astound the reader, if this were the place to. exhibit it. 

When political civilization advances, and people come to 
understand more clearly the object and use of government, as 
well as the dangers which threaten society and the individual, 
the very opposite course takes place. More protection is 
granted to the person indicted for treason, than in common 
penal trials, and the meaning of treason is more and more 
narrowed. The definition of treason is made more distinct, 
and constructive treason is less and less allowed, until we arrive 
at our own clear and definite law of treason. 

It is thus that the law of treason becomes, as I stated before, 
a symptomatic fact, and is in politics what roads, the position 
ofwoman, public amusements, the tenure of land, architecture, 
habits of cleanliness, are in other spheres. They are gauges 
of social advancement. The more I studied this subject, the 
more I became convinced of the instruction to be derived from 
the history of the law of treason in ancient times, the middle 
ages, and modern periods, and it was my intention to append 
a paper to this work, which should give a survey of the whole. 
When, however, I came to arrange my long-collected materials, 
I found, although firmly resolved to disregard an author's par- 
tiality for materials of interest once collected, and to restrict 
the paper to the merest outlines, that it would be impossible 
to do any justice to the subject without allowing to it a dis- 
proportionally large place. I decided, therefore, to leave the 
subject for a separate work. 

In conclusion I would repeat, experience proves that not 
only are all the guarantees of a fair penal trial peculiarly neces- 
sary for a fair trial for treason, but that it requires additional 
safeguards ; and> of the one or the other, the following seem 
to me the most important : 

The indictment must be clear as to facts and time when the 
indicted act has been committed ; 

The prisoner must have the indictment a sufficient time 
before the trial, so as to be able to prepare for it; 



84 ON CIVIL LIBERTY 

He must have a list of the witnesses against him, an equal 
time beforehand ; 

A sufficient time for the trial must be allowed ; and the 
prisoner must not be seized, tried, and executed, as Cornish 
was, in 1685, in a week, as Burnet says, or, as McAulay has it, 
in ten days ; 

Counsel must be allowed, as a matter of course ;» 

The judges must be impartial and independent, and ample 
challenges must be allowed ; peers must judge. Consequently, 
judges must not be asked by the executive, before the trial, 
what their judgment would be if such or such a case should 
be brought before them, as was repeatedly done by the 
Stuarts ; 

Of all trials, hearsay must be excluded from the trial for 
treason ; 

Facts, not tendencies ; acts, not words or papers written by 
the indicted person, and which have never been allowed to 
leave his desk, must be charged ; 

Perfect publicity must take place from beginning to end, 
and reporters must not be excluded ; for it is no publicity in 
a populous country that allows only some twenty or forty 
by-standers ; 1 

The trial must be in presence of the prisoner ; 

Several witnesses must be required to testify to the same 
fact, and the witnesses for the prisoner must be as much upon 
oath as those for the government ; 

Confession, if unconditionally admitted at all, must at least 
be in open court; 

There must be no physical nor psychical torture or co- 
ercion ; 

There must be good witnesses, not known villains or 
acknowledged liars, as Titus Oates, or Lord Howard against 
Lord Russell ; 

The judges must not depend upon the executive; 



1 When, in 1858, Count Montalembert was tried in Paris for having written a 
pamphlet in praise of England, a peculiarly small court-room was selected, only 
a few persons were admitted, by tickets, and no notes were allowed to be taken. 



AND SELF-GOVERNMENT. 85 

No evidence must be admitted which is not admitted in 
other trials ; 

There must be a fixed punishment ; 

There must be no constructive treason ; 

And the judges must not be political bodies. 

These guarantees have been elaborated by statute and com- 
mon law, through periods of freedom and tyranny, by the 
Anglican race. The English law grants these safeguards, 
except indeed the last to lords, because, according to the 
principle that every one must be tried by his peers, a lord is 
tried by the house of lords. It showed great wisdom that 
the framers of our constitution did not assign the trial for 
treason to the senate, 1 as the former French constitution 
appointed the house of peers to be the court for high treason. 
American impeachments are tried indeed by the senate, but it 
will be observed that the American trial of impeachment is not 
a penal trial for offences, but a political institution, trying for 
political capacity. The senate, when sitting as a court to try 
impeachments, can only remove from office, whatever the crime 
may have been; and the impeached person can be penally 
tried after the senate has removed him from office. 2 In its 
political character, then, but in no other point, the American 
impeachment resembles the Athenian ostracism, which was 
likewise a political, and not a penal institution. The English 
impeachment is a penal trial. 

The trials for treason going on in many countries of the 
European continent, especially in Naples and the Austrian 
dominions, are, by way of opposite, fair illustrations of what 
has been stated here. 3 

The trial for treason has been treated of in this place 
because naturally connected with the subject of the penal trial 



1 The American trials for treason are collected in Francis Wharton's State 
Trials of the United States, Philadelphia, 1846. 

[ 2 And, it may be, acquitted, as the court of ordinary justice would have its own 
definition of crime, and its own rules of evidence.] 

3 The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet 
on Neapolitan trials for treason, published in 185 1. It is but a sample. 



S6 ON CIVIL LIBERTY 

in general. Otherwise it would have been more properly 
enumerated among the guarantees connected more especially 
with the general government of a free country. We return, 
therefore, once more to the guarantees of individual rights. 1 



1 I would mention for the younger student, that when I study pervading insti- 
tutions, or laws and principles which form running threads through the whole 
web of history, I find it useful to make chronological tables of their chief ad- 
vancements and reverses. Such tables are very suggestive, and strikingly show 
what we owe to the continuity of human society. None of these tables has been 
more instructive to me than that on the history of the law of treason. 



AND SELF-GOVERNMENT.. Sj 



CHAPTER IX. 

COMMUNION. — LOCOMOTION, EMIGRATION. 

6. The freedom of communion is one of the most precious 
and necessary rights of the individual, and one of the indis- 
pensable elements of all advancing humanity — so much so, 
indeed, that it is one of those elements of liberty which would 
have never been singled out, had not experience shown that 
it forms invariably one of the first objects of attack when 
arbitrary power wishes to establish itself, and one of the first 
objects of conquest when an unfree people declares itself 
free. 

I have dwelt on the primordial right of communion in the 
Political Ethics at great length, and endeavored to show that 
the question is not whether free communion or a fettered press 
be conducive to more good, but that everything in the in- 
dividual and in nations depends in a great measure upon 
communion, and that free communion is a pre-existing condi- 
tion. The only question is, how to select the best government 
with it, and how best to shield it, unless, indeed, we were 
speaking of tribes in a state of tutelage, ruled over by some 
highly advanced nation. 

In this place we only enumerate freedom of communion as 
one of the primary elements of civil liberty. It is an element 
of all civil liberty. No one can imagine himself free if his 
communion with his fellows is interrupted or submitted to 
surveillance ; but it is the Anglican race which first established 
it on a large scale, broadly and nationally acknowledged. 1 

Free nations demand and guarantee free communion of 
speech, the right of assembling and publicly speaking, for it is 



The first fair play was given to a free press in the Netherlands. 



88 ON CIVIL LIBERTY 

communion of speech in this form which is peculiarly exposed 
to abridgment or suppression by the public power; they 
guarantee the liberty of the press, and, lastly, the sacredness 
of epistolary communion. 

It is a very striking fact that, although the Constitution of 
the United States distinctly declares that the government of 
the United States shall only have the power and authority 
positively granted in that instrument, so that, in a certain 
respect, it was unnecessary to say what the government should 
not have the right to do, still, in the very first article of the 
Additions and Amendments of the Constitution, congress is 
forbidden to make any "law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging 
the freedom of speech, or of the press, or the right of the 
people peaceably to assemble, and to petition the government 
for a redress of grievances." 

The reader will keep in mind that the framers of our con- 
stitution went out of their way and preferred to appear incon- 
sistent, rather than omit the enumeration of those important 
liberties, that of conscience, as it is generally called, that of 
communion, and of petitioning ; and the reader will remember, 
moreover, that these rights were added as amendments. They 
must then have appeared very important to those who made 
our constitution, both on account of their intrinsic importance, 
and because so often attacked by the power-holders. Let the 
reader also remember that, if it be thus important to abridge 
the power of government to interfere with free communion, it 
is at least equally important that no person or number of men 
interfere, in any manner, with this sacred right. Oppression 
does not come from government or official bodies alone. The 
worst oppression is of a social character, or by a multitude. 

The English have established the right of communion, as so 
many other precious rights by common law, by decisions, by 
struggles, by revolution. All the guarantee they have for the 
unstinted enjoyment of the right lies in the fact that the 
whole nation says with one accord, as it were : Let them try 
to take it away. 



AND SELF-GOVERNMENT. 89 

It is the same with our epistolary communion. The right 
of freely corresponding is unquestionably one of the dearest 
as well as most necessary of civilized man ; yet our fore- 
fathers were so little acquainted with a police government, 
that no one thought of enumerating the sacredness of letters 
along with the freedom of speech and the liberty of the press. 
The liberty of correspondence stands between the two ; free 
word, free letter, free print. The framers did not think of it, — 
as the first law-makers of Rome are said to have omitted the 
punishment of parricide. 

The sacredness of the letter appears the more important 
when it is considered that in almost all civilized countries the 
government is the carrier of letters and actually forbids any 
individual to carry sealed letters. 1 So soon as the letter, there- 
fore, is dropped into the box, where, as it has just been stated, 
the government itself obliges the correspondent to deposit it, it 
is exclusively entrusted to the good faith and honorable dealing 
of government. If spies, informers, and mouchards are odious 
to every freeman and gentleman, the prying into letters, car- 
ried on in France and other countries with bureaucratic sys- 
tem, is tenfold so, for it strikes humanity in one of its vital 
points ; and had the mail acquired as great an importance in 
the seventeenth century as in ours, as an agent of civiliza- 
tion, and had Charles I. threatened this agent as he invaded 
the right of personal liberty, the Petition of Right would have 
mentioned the sacredness of letters 2 as surely as it pointed out 
the billeting of soldiers as one of the four great grievances of 
which the English would be freed before they would grant 
any supplies to the government. 3 



1 The law of the United States prohibits any private person periodically and 
regularly to carry letters, and also to carry letters in mail ships. 

[ 2 The letters publicly transmitted by mail were so few in number that the 
right was not felt to be very important. Nor had it been systematically invaded.] 

3 The American states in which slavery exists have not considered the laws 
or principles relating to letters to apply to public journals, when suspicion exists 
that they contain articles hostile to slavery. In some cases people have broken 
into the post-office and seized the obnoxious papers ; in other cases the state 
legislature have decreed punishments for propagating abolition papers. Thus, 



go 



ON CIVIL LIBERTY 



In all the late struggles for liberty on the continent of 
Europe, the sacredness of letters was insisted upon, not from 
abstract notions, but for the very practical reason that govern- 
ments had been in the habit of disregarding it. Of course, 
they now do so again. The English parliament took umbrage, 
a few years ago, at the* liberty a minister had taken of order- 
ing the opening of letters of certain political exiles residing 
in England, and, although he stated that it had been the habit 
of all administrations to order it under certain circumstances, 
he promised to abstain in future. In the United States there 
is no process or means known to us, not even by writ of a 
court, we believe, by which a letter could be extracted from 
the post-office, except by him to whom it is addressed ; and 
as to the executive unduly opening letters, it would be cause 
for instant impeachment. 

Quite recently, in the month of April, 1853, it appeared in 
the prosecution of several persons of distinction at Paris, for 
giving wrong and injurious news to foreign papers, that their 
letters had not only been opened at the post-office, but that 
the originals had been kept back, and copies had been sent to 
the recipients, with a postscript, written by the government 
officer, for the purpose of fraudulently explaining the different 
handwriting. It stated that the correspondent had a sore hand. 



we read in the National Intelligencer, Washington, October 6, 1853, that " Mr. 
Herndon, postmaster at Glenville, informs the editor of the Religions Telescope, 
at Circleville, Ohio, that having, according to the laws of Virginia, opened and 
inspected his papers, and found them to contain abolition sentiments, he has 
l-efused to deliver them as addressed, and has publicly burnt them in presence of 
a magistrate. It appears by his letter that the penalty for circulating such papers 
is imprisonment in the penitentiary for not less than one nor more than five 
years." 

Such is the law, and its lawfulness, wisdom, and dignity must be judged of by 
the laws and principles by which other measures are judged; but it cannot be 
denied that a freeman feels himself circumscribed so far as he is denied to read 
what he chooses. If a government or a set of men were to forbid a man to read 
an atheistic paper, though he might be a fervent Christian, his liberty would be 
undoubtedly circumscribed pro tanto. 

That the seizure of English papers on the continent is of frequent occur- 
rence, is well known by every reader of the daily papers. 



AND SELF-GOVERNMENT. 9 1 

When the counsel for the accused said that the falsifying 
officer ought to be on the bench of the accused, the court 
justified the prefect of the police, on the ground of " reasons 
of state." No commentary is necessary on such self-vilification 
of governments ; but this may be added, that these outrages 
were committed even without a formal warrant from any one, 
but on the sole command of the police. Are we, then, wrong 
in calling such governments police governments ? It is not 
from a desire to stigmatize these governments. It is on account 
of the prevailing principle, and the stigma is a natural conse- 
quence of this principle. 1 



1 In the decision of the appellate court in the same case we find this to be the 
chief argument, that government establishes post-offices, and cannot be expected 
to lend its hand to the promotion of mischief, by carrying letters of evil-doers. 
This is totally fallacious. Government does not establish post-offices, but society 
establishes them for itself, though it may be through government. The mail is 
no boon granted by government. 

If it did, it is not a benefit done by a second party, as when A makes a present 
to B, but government is simply and purely an agent ; and, what is more, the 
right of establishing post-offices is not an inherent attribute of government, such 
as the administration of justice or making war. Government merely becomes 
the public carrier, for the sake of general convenience. There are many private 
posts, and governments without government post-offices, for instance, the republic 
of Hamburg. 

The opening of letters without proper warrant is a frightful perversion of 
power, and though government should be able to get at secret machinations, the 
secret of letters is a primordial condition. Government might, undoubtedly, 
know many useful things if the sacredness of Catholic confession were broken 
into; but that is considered a primordial and pre-political condition. So, many 
codes do not force a son to testify against a father; the family affection is con- 
sidered a primordial condition. The very state of society, for which it is worth 
living, is invaded, if the correspondence is exposed to this sort of government 
burglary. 

The argument is simply this. Man is destined to live in society, united by 
converse and intercommunion; this is a basis of humanity. If you open letters, 
you seriously invade this primary condition. Men are individuals, and social 
beings, destined for civilization and united progress, and the question is not 
whether they may be dispensed with, but how to govern with them. Govern- 
ments too frequently act as though the government were the primary condition, 
and the remaining question only was, how much may be spared by government 
to be left for society or individuals. The opposite is the truth. 

After this note had been published, the French court of cassation, " all cham- 



9 2 



ON CIVIL LIBERTY 



England, as may be supposed, has not always enjoyed liberty 
of the press. It is a conquest of high civilization. It is, however, 
a remarkable fact, that England owed its transitory but most 
stringent law of a censorship to her republican government. 

On September 20, 1647, it was decreed by the republican 
government in England that no book henceforth be printed 
without previously being read and permitted by the public 
censor, all privileges to the contrary notwithstanding. House 
searches for prohibited books and presses should be made, and 
the post-office would dispatch innocent books only. All places 
where printing-presses may exist should be indicated by au- 
thority. Printers, publishers, and authors were obliged to give 
caution-money for their names. No one was permitted to 
harbor a printer without permission, and no one permitted to 
sell foreign books without permission. Book-itinerants and 
ballad-singers were imprisoned and whipped. We are all 
acquainted with Milton's beautiful and searching essay on the 
liberty of the press against this censorship. 1 

The reader who pays attention to the events of his own 
days will remember the law against the press, issued imme- 
diately after the coup d'etat of Louis Napoleon, which puts 
the sale of printing and lithographic presses, copying ma- 
chines, as well as types, under police supervision, and which, 
in one word, intercepts all public communion. 



bers united," decided, in the last resort, that in the case of Coetlogon, Flandin, 
and others, no illegal act had been committed by the prefect of the police, in 
opening letters, etc. etc. The decision is given in full in the Courrier des Etats- 
Unis, New York, December 12, 1853. 

1 [Several corrections are necessary in this and the preceding paragraph. The 
long parliament — not the commonwealth — passed an ordinance June II, 1643, 
for restraining the liberty of the press, and to strengthen some former orders 
made for that purpose. This led to Milton's Areopagitica, published in Novem- 
ber, 1644. Afterwards, September 21, 1647, m consequence of a letter from 
Gen. Fairfax, complaining of scandalous pamphlets, a new ordinance was passed, 
which contains several of the particulars mentioned in the text. Comp. Cob- 
bett's Pari. Hist., iii. pp. 131, 132,780. In 1662 a new licensing law was passed 
under Charles II. In 1695, under William, the Licensing act ceased to have 
effect, ami was not again passed. Comp. Smyth's Lect. on Hist., ii. lect. 22 j 
Macaulay's Hist., iv. 348, et seq., 541.] 



AND SELF-GOVERNMENT. 



93 



I suppose it will be hardly necessary to treat, in connection 
with the liberty of communion, of the " liberty of silence," as 
a French paper headed an article, when, soon after the coup 
d'etat, it was intimated to a Paris paper, by the police, that 
its total silence on political matters would not be looked upon 
by government with favor, should the paper insist on con- 
tinuing it. 

It would be, however, a great mistake to suppose that gov- 
ernments alone interfere with correspondence and free commu- 
nion. Governments are bodies of men, and all bodies of men 
act similarly under similar circumstances, if the power is 
allowed them. All absolutism is the same. I have ever ob- 
served, in all countries in which I have lived, that, if party 
struggle rises to factious passion, the different parties en- 
deavor to get hold of the letters of their adversaries. It is, 
therefore, of the last importance, both that the secret of letters 
and the freedom of all communion be legally protected as 
much as possible, and that ever} 7 true friend of liberty present 
the importance of this right in the clearest possible manner to 
his own mind. 

7. The right of locomotion, or of free egress and regress, as 
well as free motion within the country, is another important 
individual right and element of liberty. 

The strength of governments was generally considered, in 
the last century, to consist in a large population, large amount 
of money, that is specie, within the country, and a large 
army founded upon both. It was consistent, therefore, that 
in countries in which individual rights went for little, and the 
people were considered the mere substratum upon which the 
state, that is the government, was erected, emigration was 
considered with a jealous eye, or wholly prohibited. Nor can 
it be denied that emigration may present itself in a serious 
aspect. So many people are leaving Ireland, that it is now 
common, and not inappropriate, to speak of the Irish exodus; 
and it has been calculated, upon authentic data, both in Ger- 
many and the United States, that for the last few years the 
German emigrants have carried not far from fifteen millions 



94 



ON CIVIL LIBERTY 



of Prussian dollars annually into the United States. 1 The 
amount of emigrating capital may become greater even; but 
freemen believe that governments are for them, not they for 
governments, and that it is a precious right of every one to 
seek that spot on earth where he can best pursue the ends of 
life, physical and mental, religious, political, and cultural. 2 

If, under peculiar circumstances, a country should find itself 
forced to prohibit emigration, the measure would, at any rate, 
so far as this right goes, be an abridgment of liberty. 3 We 
can imagine many cases in which emigration should be stopped 
by changing those circumstances which cause it, but none in 
which it ought to be simply prohibited. The universal princi- 
ple of adhesiveness, so strong in all spheres of action, thought, 
and affection, and which forms one of the elementary princi- 
ples of society and continuity of civilization, is sufficiently 
strong to keep people where they are, if they can remain ; and 
if they leave an over-peopled country, or one in which they 
cannot find work or a fair living, they become active producers 
in the new country, and consequently proportionate consumers 
in the great market of the world, so that the old country will 



1 On the other hand, an immense amount of capital annually returns, from suc- 
cessful emigrants in the United States, to Ireland and Germany. Persons who 
have not paid attention to the subject cannot have any conception how many 
hard yet gladly earned pounds and thalers are sent from our country to aged 
parents or toiling sisters and brothers in Europe. A wide-spread and blessed 
process of affection is thus all the time going on — silent, gladdening, and 
full of beauty, like the secret and beautifying process of spring. It is curious to 
observe, in connection with this emigration of coin from Europe, (for a large 
portion of the emigrating capital consists in European specie,) how the coins are 
first carried to the distant west in the pouches of the emigrants, and then are 
sent in large boxes from the western banks, into which they naturally flow, to the 
New York banks, to be sold to the specie-broker, who sells them for shipment 
back to France, Germany, or England. The Banks of New York, by T. S. Gib- 
bons, New York, 1859. 

2 In the Prussian constitution of 1850, Tit. ii. Art. ii., it is said, "The right to 
emigrate cannot be restricted by the state, except with respect to the duty of mili- 
tary service." 

3 [Penalties for escaping a draft in time of war, or deserting one's country in 
its perils, may be perfectly just. Comp. the Oration of Lycurgus against Leocra- 
tes, e.g. §§ 11, 16.] 



AND. SELF-GOVERNMENT. 95 

reap its proportionate benefit, provided free exchange be 
allowed by the latter. 

The same applies to the capital removed along with emi- 
gration. It becomes more productive, and mankind at large 
are benefited by it. 

Besides, it is but a part of the general question, Shall or shall 
not governments prohibit the efflux of money ? It was for- 
merly considered one of the highest problems of statesman- 
ship, even by a ruler so wise as Frederic II. of Prussia, to 
prevent money from flowing out of the country ; for wealth 
was believed to consist in money. Experience has made us 
wiser. We know that the freest action in this, as in so many 
other cases, is also the most conducive to general prosperity. 
It was stated in the journals of the day that Miss Jenny Lind 
remitted five hundred thousand dollars from the United States 
to Europe. Suppose this to be true, would we have been 
benefited had she been forced to leave that sum in this coun- 
try ? * Or would we, upon the whole, profit by preventing five 
million dollars, which, according to the statement of our 
secretary of state, are now annually sent by our Irish emi- 
grants to Ireland, from leaving our shores? 2 Unquestionably 



1 The papers of September, 1853, reported that "the Silby estate, belonging 
to the Hon. Mrs. Petre, has been sold to Lord Londesborough for ,£270,000. 
Mrs. Petre, whose property was left by her husband entirely at her own disposal, 
has taken the veil in a nunnery in France, which will of course receive the whole 
of her fortune." 

This emigration of more than a million of dollars, and serving for the purpose 
of a religious community not favored by the country whence it emigrates, (not 
to speak of the actual droit d'aubaine in France before the revolution,) indicates 
a great advance of civilization, and would not be allowed in several countries. 
[The laws of civilized states, however, may properly limit or forbid the acquisition 
of property in mortmain or by religious corporations. And if within a country 
religious bodies were forbidden to hold such property, why should they, if situ- 
ated in another, have such capacity of acquisition from the foreign country?] 

2 Hon. Edward Everett's dispatch to Mr. Crampton, on the Island of Cuba, 
December I, 1852. The London Spectator of December 17, 1853, said: — 

"Not less than ^2,972,000 was remitted from Irish emigrants in America to 
their friends and relatives at home, in 1848, 1849, l %5°> an d 185 1. It is esti- 
mated that if the remittances have continued at the same rate, upwards of four 
millions must have been remitted in the last six years." 



g6 ON CIVIL LIBERTY 

not. But this is not the place for further pursuing a question 
of political economy. 

The English provided for a free egress and regress as early 
as in Magna Charta. As to the freest possible locomotion 
within the country, I am aware that many persons accustomed 
to Anglican liberty may consider my mentioning it as part of 
civil liberty too minute. If they will direct their attention to 
countries in which this liberty is not enjoyed in its fullest 
extent, they will agree that I have good reason for enumer- 
ating it. Passports are odious things to Americans and 
Englishmen, and may they always be so. 1 



1 The primordial right of locomotion and emigration has been discussed by me 
in Political Ethics, at considerable length. The state of Mississippi declares in 
its bill of rights, that the right of emigration shall never be infringed by law 
or authority. The English distaste of passports was severely tried when, after 
Orsini's attempt to assassinate Napoleon III., stringent passport regulations Mere 
adopted in France; but the English found them so irksome (and the money 
they spend is so acceptable to the continent) that those police regulations were 
soon relaxed in a very great degree. Napoleon III., when an exile, wrote on the 
individual liberty in England, and called passports "that invention of the Com- 
mittee of Public Safety." See his works. The modern passport was, doubtless, 
greatly developed in the first French revolution, but not invented. The history of 
the passport, from the Roman Empire to the modern railroad, which naturally 
interferes with its stringency, is an interesting portion of the history of our race, 
but it belongs to what the Germans have cai-ved out as a separate branch under 
the name of Police Science, (Polizei-Wissenschaft.) 



AND SELF-GOVERNMENT. gy 



CHAPTER X. 

LIBERTY OF CONSCIENCE. PROPERTY. SUPREMACY OF 

THE LAW. 

8. Liberty of conscience, or, as it ought to be called more 
properly, 1 the liberty of worship, is one of the primordial 
rights of man, 2 and no system of liberty can be considered 
comprehensive which does not include guarantees for the free 
exercise of this right. It belongs to American liberty to 
separate entirely the institution which has for its object the sup- 
port and diffusion of religion from the political government. 
We have seen already what our constitution says on this point. 
All state constitutions have similar provisions. 3 They prohibit 
government from founding or endowing churches, and from 
demanding a religious qualification for any office or the 
exercise of any right. They are not hostile to religion, for 
we see that all the state governments direct or allow the Bible 
to be read in the public schools ; but they adhere strictly to 
these two points : No worship shall be interfered with, either 
directly by persecution, or indirectly by disqualifying members 
of certain sects, or by favoring one sect above the others ; 
and no church shall be declared the church of the state, or 
" established church ;" nor shall the people be taxed by 
government to support the clergy of all the churches, as is 
the case in France. 



1 Conscience lies beyond the reach of government. "Thoughts are free," is 
an old German saying. The same must be said of feelings and conscience. 
That which government, even the most despotic, can alone interfere with, is the 
profession of religion, worship, and church government. 

2 See Primordial Rights in Political Ethics. 

3 [A state in the American Union might have a state church, although such 
an event is at present utterly improbable.] % 

7 



98 ON CIVIL LIBERTY 

In England there is an established church, and religious 
qualifications are required for certain offices and places, at 
least in an indirect way. A member of parliament cannot 
take his seat without taking a certain oath "upon the faith of 
a Christian ;" which, of course, excludes Jews. There is no 
doubt, however, that this disqualification will soon be removed. 1 
Whether it will be done or not, we are nevertheless authorized 



1 This disqualification has at length been removed, in 1858. The words 
" upon the faith of a Christian" may be left out of the qualifying oath by a non- 
Christian. There are now (1859) three Jews in the house of commons. 

Since the text, to which this note is appended, was written, the case of the 
Madiai family has attracted the attention of all civilized nations in the old and 
new world. The Madiai family, natives of Tuscany, had become Protestants, 
and used to read the Bible. No offence has ever been charged to them, except 
that they read the Bible in the vernacular. Their imprisonment and prosecution 
caused the formation of a Society for Protecting the Rights of Conscience, in 
England, in July, 1857. Archbishop Whately presided at the first meeting, and 
in giving the scope of the society, spoke of the topic in hand with a degree of 
discrimination which entitles his remarks to be reproduced here. He said : 

"We are entirely unconnected with conversion, except so far as converts may 
be exposed to persecutions for conscience' sake. We enter into no connection 
with any society for diffusing religious knowledge of any kind. By rights, we 
understand not necessarily that every one is right in the religion that he adopts, 
but that his neighbors have no right to interfere with him. We merely maintain 
that a man has a right, not necessarily a moral right, nor a right in point of 
judgment, but a civil right, to worship God according to his own conscience, 
without suffering any hardships at the hands of his neighbors for so doing. We 
limit ourselves entirely to those descriptions of persecution in which the law 
can give no relief. As for assaults and violence of any kind, where the law 
provides and holds out a remedy, we leave all persons to seek that remedy for 
themselves; and we do not undertake to guard, or to remunerate, or to compen- 
sate any persons who are exposed to obloquy, to curses, denunciations of Divine 
vengeance uttered by men, to ridicule, or to any sort of annoyance of that kind. 
They should be taught to bear it and to support it with joy and satisfaction 
through Divine help, and rejoicing that they are counted worthy to suffer in the 
good cause. But when attempts are made to compel men to conform to what 
they do not conscientiously believe, by the fear of starvation, by turning them 
out of employment when they are honest and industrious laborers, by refusing 
to buy and sell or hold any intercourse with them, then I think it is, and then 
only, that a society like this ought to come forward, and that all persons, what- 
ever religion they may be of, or whether they are of any religion at all or not, 
in a feeling of humanity and justice, ought to look with a favorable eye on such 
a society as yours, provided it keep itself within its own proper bounds." 



AND SELF-GOVERNMENT, 



99 



to say that liberty of conscience forms one of the elements of 
Anglican liberty. It has not yet arrived at full maturity in 
some portions of the Anglican race, but we can discern it in the 
whole race, in whose modern history we find religious toleration 
at an earlier date than in that of any other large portion of 
mankind. Venice, and some minor states, found the econom- 
ical and commercial benefit of toleration at an early period, 
but England was the earliest country of any magnitude where 
toleration, which precedes real religious liberty, was established. 
While Louis XIV. of France, called the Great, " dragonnaded" 
the Protestants on no other ground than that they would not 
become Catholics, a greater king, William III., declared, in 
England, that " conscience is God's province." The Catholics 
were long treated with severity in England, but it was more on 
a political ground, because the pope supported for a long time 
the opponents to the ruling dynasty, than on purely religious 
grounds. 

There is a new religious zeal manifesting itself in all 
branches of the Christian church. The Catholic church seems 
to be animated by a renewed spirit of activity, not dis- 
similar to that which inspired it in the seventeenth centuiy, 
by which it regained much of the ground lost by the Reforma- 
tion, and which has been so well described by Mr. Ranke. 
The Protestants are not idle ; they study, preach, and act with 
great zeal. May Providence grant that the Anglican tribe, 
and all the members of the civilized race, may more and more 
distinctly act upon the principle of religious liberty, and not 
swerve from it, even under the most galling circumstances. 
Calamitous consequences, of which very few may have any 
conception at this moment, might easily follow. 

As to that unhappy and most remarkable sect called the 
Mormons, who have sprung up and consolidated themselves 
within our country, and who doubtless may become trouble- 
some when sufficiently numerous to call on us for admission 
into the Union, I take it that the political trouble they may 
give cannot arise from religious grounds. Whether they have 
fallen back into Buddhism, making their god a perfectible 



IOO ON CIVIL LIBERTY 

being - , with parts and local dwelling, cannot become a direct 
political question, however it may indirectly affect society in 
all its parts. The potent questions which will offer great 
difficulty will be, whether a Mormon state, with its "theo- 
democratic" government, as they term it, can be called a 
republic, in the sense in which our constitution guarantees it 
to every member of the Union. It will then, probably for the 
first time in history, become necessary legally to define what 
a republic is. The other difficulty will arise out of the ques- 
tion which every honest man will put to himself, Can we admit 
as a state a society of men who deny the very first principle, 
not of our common law, not of Christian politics, not of modern 
progress, but of our whole western civilization, as contra- 
distinguished from oriental life — of that "whole civilization in 
which we have our being, and which is the precious joint pro- 
duct of Christianity and antiquity — who disavow monogamy ? 

No one will now deny that the English parliament followed 
too tardily the advice of those great statesmen who urged 
long ago to abolish test oaths and other religious impedi- 
ments ; but to judge impartially, we must not forget that the 
removal of disqualifications in countries enjoying a high 
degree of liberty is more difficult than in despotic countries, 
where all beneath the despot live in one waste equality. 
Liberty implies the enjoyment of important rights and high 
privileges. To share them freely with others who until then 
have not enjoyed them appears like losing part of them. It 
is a universal psychologic law. Neither religion nor color 
constitutes half the difference in many Asiatic states, which 
they establish in many free countries. It must likewise be 
remembered that liberty implies power, the authority of act- 
ing ; consequently, an admission to equality in a free country 
implies admission to power, and it is this which frequently 
creates, justly or unjustly, the difficulty of perfect religious 
equality in certain states of society. 

The end, however, which is to be reached, and toward 
which all liberty and political civilization tends, is perfect 
liberty of conscience. 



AND SELF-GOVERNMENT. IO i 

9. One of the staunchest principles of civil liberty is the 
firmest possible protection of individual property 1 — acquired 
or acquiring, produced and accumulated, or producing and 
accumulating. We include, therefore, unrestrained action 
in producing and exchanging, the prohibition of all unfair 
monopolies, commercial freedom, and the guarantee that no 
property shall be taken except in the course of law ; and the 
principle that, in particular, the constant taking away of part 
of property, called taxation, shall not take place, except by 
the direct or indirect consent of the owner — the tax-payer — 
and, moreover, that the power of government to take part of 
the property, even with the consent of the payer, be granted 
for short periods only, so that the taxes must be renewed, and 
may be revised at brief intervals. The true protection of in- 
dividual property demands likewise the exclusion of confisca- 
tion. For, although confiscation as a punishment is to be 
rejected on account of the undefined character of the punish- 
ment, depending not upon itself but upon the fact whether 
the punished person has any property, and how much, it is 
likewise inadmissible on the ground that individual property 
implies individual transmission, 2 which confiscation totally de- 
stroys. 3 It would perhaps not be wholly unjust to deprive an 
individual of his property as a punishment for certain crimes, 
if we were to allow it to pass to his heirs. We do it in fact 
when we imprison a man for life, and submit him to the regular 
prison discipline, disallowing him any benefit of the property 



1 It has been one of the main objects in my Essays on Labor and Property, to 
show the necessity and justice of individual property, and its direct connection 
with man's individuality, of which it is but the reflex in the material world around 
him. Man suffers in individuality, therefore in liberty, in the degree in which 
absolutism, which is always of a communistic nature, deprives him of the pos- 
session, enjoyment, production, and exchange of individual property. The 
Essays treat of property in a political, psychologic, and economical point of 
view. 

2 The subject of individual inheritance has also been treated at length in the 
Essays mentioned in the preceding note. 

3 [Our author of course cannot object to fines, one of the most universal and 
most efficacious of penalties.] 



102 ON CIVIL LIBERTY 

he may possess; but it is unjust to deprive his children or 
other heirs of the individual property, not to speak of the 
appetizing effect which confiscation of property has often 
produced upon governments. 

The English attainder and corruption of blood, so far as it 
affects property, is hostile to this great principle of the utmost 
protection of individual property, and has come down to the 
present times from a period of semi-communism, when the 
king was considered the primary owner of all land. Corrup- 
tion of blood is distinctly abolished by our constitution. 

Individual property is coexistent with government. Indeed, 
if by government be understood not only the existence of any 
authority, but rather the more regular and clearly established 
governments of states, property exists long before government, 
and is not its creature ; as values exist long before money, and 
money long before coin, and coin before government coin. We 
find, therefore, that the rightful and peaceful enjoyment of in- 
dividual property is not mentioned as a particular item of civil 
liberty, as little as the institution of the family, except when 
communistic J ideas have endangered it, or, in particular cases, 



1 I shall not have room to give a whole chapter to the subject of communism, 
or rather a single chapter would be wholly insufficient on this interesting subject, 
which, moreover, belongs to general political philosophy, rather than to our 
branch. I shall mention, therefore, this only, that I use in these pages the word 
communism in its common adaptation, meaning a state of society in which indi- 
vidual property is abolished, or in which it is the futile endeavor of the lawgiver 
to abolish it, such as hundreds of attempts made, in ancient times, in the middle 
ages, and in modern epochs, in Asia and in Europe, among the Spartans, the 
anabaptists, and French communists. I do not take here the term communism 
in that philosophical sense according to which every state, indeed every society 
whatever, necessarily consists of the two elements of individualism and social- 
ism. The grave error of the socialist is that he extends the principle of socialism, 
correct in itself, to the sphere where individualism or separatism, equally correct, 
ought to determine our actions. The socialist is as mistaken an enthusiast as the 
individualist would be, who, forgetting the element of socialism, should carry his 
principle to the extreme of disjunctive egotism, and insfet upon a dissolution of 
government and a disavowal of the sovereignty of society in political matters. It 
is instructive to observe how, also, in this case, the extremes meet; for works 
have been actually published by socialists which wind up with an entire denial 
of government, and an avowal of " individual sovereignty." 



AND SELF-GOVERNMENT. 103 

when private property must be given up for the public 
benefit, 1 and laws or constitutions settle that it shall not be 
done except for equivalents given by the public through 
government. 2 

Our constitution goes farther. It distinctly enacts that " no 
state shall pass any law impairing the obligation of contracts," 
which includes contracts with governments, and not only 
common contracts, but rights conferred for equivalents. 3 

The right of self-taxation has been mentioned as a guarantee 
of private property ; for no matter what form taxation may 
assume, it must always consist in the appropriation of private 
property for public ends. Taxation has, however, another, 
purely political and highly important meaning, and we shall 
consider it under this aspect in another part of this work. 

Every single subject here mentioned, monopolies, 4 freedom 
of trading, freedom of home production, freedom of exchange, 
possession of property, taxation and confiscation — each one 
has a long history, full of struggle against error and govern- 



1 See the constitution of the French Republic of 1848, in the Appendix. It 
contains a paragraph acknowledging private property, the family, etc. It was 
right to insert it, under the circumstances. If the Spartans had ever reformed 
their government, and passed from their socialism to individualism, they would 
have been justified in proclaiming the sanctity of the family and the acknowl- 
edgment of private cookery, however ludicrous this might be under other 
circumstances. 

2 Points belonging to this subject and its primordial character were pronounced 
with clearness in the late pleadings in the French courts, when it was endeavored 
to show, unfortunately in vain, that Louis Napoleon had no right, even as a dic- 
tator, to confiscate the private property of the Orleans family, and that the courts 
were competent to restore it to the lawful owners. 

3 See Judge Story, in his Commentaries on the Constitution of the United 
States, and his Opinion, as well as Chief-Justice Marshall's' in the celebrated 
Dartmouth Case, 4 Wheaton R. 518, and also Mr. Webster's Works for his 
argument in that case. * 

The English go much farther than ourselves, not indeed in principle, but be- 
cause they consider many rights, places, and privileges as vested property which 
we by no means consider as such. 

* An act of parliament under James I. (21 James I. i. 3) prohibited all mono- 
polies granted by the crown, after the courts had repeatedly, even under Elizabeth, 
declared certain monopolies null and void. 



104 0N CIVIL LIBERTY 

ment interference, running through many centuries and even 
a thousand years. On each a separate and instructive history 
might be written. Each shows the continued course of 
gradually, though very slowly, expanding freedom. Nor 
has this history of development reached its close, although 
it has attained to that period in which we acknowledge the 
highest protection of individual property as an element of our 
freedom. 

That the so-called repudiation — it is always unfortunate and 
suspicious when offences that have long received their proper 
name are stamped with a new and apparently innocent one ; 
still worse is it when the error is elevated into a commendable 
act; and Bacon is right when he says, Pessima enim res est 
errorum apotheosis — that repudiation is a violation of the 
sacred principle we treat of, no one now will have the hardihood 
to deny. Still it is true that abroad it is almost universally 
treated erroneously, as well in regard to its causes as to its 
extent, the inferences drawn from it regarding republican 
government, and the supposed novelty of the case. We could 
give a long list of monarchical repudiations. But we do not 
claim this as an excuse. The worst of all arguments is, 
although in constant use, from the school-boy to princes, 
presidents, and writers on national affairs, that things are 
equally bad or worse with others. Right and truth, wrong 
and falsehood, remain forever what they are ; and Mr. Webster 
pointedly said at the time of repudiation, in the senate of the 
United States : " You may repudiate, but that does not pay 
your debts." Repudiation was, and remains, a serious wrong, 
but its immorality does not authorize to draw wrong conclu- 
sions, and we totally deny the correctness of the assumed facts 
and inferences drawn from them by Sir A. Alison. 1 



1 Paragraph fifty-nine, chap. i. vol. i. of History of Europe from the Fall of 
Napoleon to the Accession of Louis Philippe. Possibly an opportunity may 
offer itself some day to treat of this melancholy subject at length and in all its 
details. 

I cannot forbear, however, to copy a passage of Sir A. Alison, viz. : " The 
principal states of the Union have, by common consent, repudiated their state 



AND SELF-GOVERNMENT. 105 

10. There can be no individual liberty where every citizen 
is not subject to the law, and where he is subject to aught 
else than the law — that is, public opinion organically passed 



debts as soon as the storms of adversity blew ; and they have in some instances 
resumed the payment of their interest only when the sale of lands they had 
wrested from the Indians afforded them the means of doing so, without recurring 
to the dreaded horrors of direct taxation" — and to add that there is not one fact 
in this whole passage. The principal states did not repudiate; the repudiation 
was not by common consent ; no land has been wrested from the Indians and 
sold for the benefit of the states, and direct taxation exists in most states, perhaps 
in all the states to some extent. Many of those readers who have been my pupils 
will remember that for a number of years I was in the habit of delivering a course 
of lectures on Repudiation, in which, I trust, I showed no disposition to mince 
matters; but to repudiate the representative principle as Sir Archibald does when 
treating of Repudiation, and to present the lattei as a natural consequence of 
republicanism, transcends the bounds of reason. What element in the English 
polity, we would ask, is it that makes English credit so firm ? Is it the monarch- 
ical? This cannot well be, for many monarchs have more than loosely dealt with 
credit, public funds, and even private property. I believe, on the contrary, that 
the credit of England mainly rests on her representative, her republican principle. 
I do not mean to say that people lend their money just because she has a parlia- 
ment. What I mean is that the reliance of the world on the good faith of Eng- 
land in money matters has been built up by her parliamentary government, and 
would not have been built up without it. 

The Dutch Republic enjoyed great credit, while the Regent of France, and 
his council of state, seriously debated whether the " new government" was 
obliged to acknowledge the debts of the defunct Louis XIV. One of the worst 
cases of repudiation was exhibited in England long before the unhappy laxity 
became manifest in our land. The Prince of Wales (George IV.) and two of 
his brothers, the Dukes of York and Clarence, desired to escape paying a loan 
of 3,600,000 guilders which they had made in Holland, through the banker 
Thomas Hammersly. When the bond-holders came to England to enforce pay- 
ment, Sir Arthur Pigott, attorney-general of the Duchy of Cornwall, acting for 
the Prince of Wales, stated in the court that he had never heard of the bonds, 
which was absolutely untrue. All London, and indeed all England, knew of 
it. The arguments were worthy of any Mississippi repudiator, such as, The 
present bond-holders are not the original lenders; war has broken out. Ulti- 
mately the Dutch bond-holders who were in England were arrested under the 
alien law and put on board a vessel, where, English writers say, I cannot say 
with what degree of truth, they perished, though none of the crew died. 

Sir A. Alison says somewhere in his writings, that the richest men in the city 
of New York do not dare to have stately fronts for their houses, however costly 
the interior may be, from fear of displeasing the democracy. Truth and essential 
progress are never promoted by wrong or false argument. 



106 ON CIVIL LIBERTY 

into public will, 1 This we call the supremacy of the law. 2 
All subjective arbitrariness is contrary to freedom. The law 
of a freeman is a general rule of action, having grown out of 
the custom of the people, or having been laid down by the 
authority empowered by the people to do so. A law must be 
a rule which does not violate a superior law or civil principle, 
it must be made before the case to which it is applied has 
occurred, (without which it cannot be mens sine effectu, as the 
ancients called the law,) and it must be truly as well as plainly 
published. 

The citizen, therefore, ought not to be subject to ex post 
facto laws, 3 to a " government by commissions," nor to 
extraordinary courts 4 of justice, to a dispensing power in the 



1 We shall presently say more on the all-important word Law; but for an 
extensive discussion of the subject I must refer the reader to the Political 
Ethics. 

2 It will hardly be necessary to state that the term supremacy of the law has 
a meaning only when by law we understand general and pre-existing rules of 
action expressing public will. Whether the name of law be given to personal 
decrees and arbitrary decisions, is not of the smallest importance. Napoleon, at 
St. Helena, expressed his surprise at having been called a despot; " I," said he, 
" who have always acted by law !" This forcibly reminds us of a prominent French 
paper, the Univers, which lately stated that it was decidedly in favor of repre- 
sentative government, and that it was only necessary to know what is understood 
by representative government. The Univers — so said the paper itself — under- 
stands by this term a legislative corps, which represents the government. I have 
known, in an official capacity, a patient in a hospital for the insane, who perse- 
veringly maintained that the difference between him and me consisted solely in 
the name. " Suppose," he used to say, " we patients vote that we are sane and 
the out-door party is crazy?" " Don't you see?" he would add, with a knowing 
look. 

3 Our constitution prohibits them. 

4 By extraordinary courts of justice are meant, in this connection, courts of an 
extraordinary composition, not those that are simply directed to sit at an unusual 
time. The difference between justice, that is, right distributed among men by 
lawful and regularly appointed judges on the one hand, and the trials by com- 
missioners on the other hand, is well pointed out by an anecdote, such as Plutarch 
would not have disdained to give in his writings. Montaign, grand master of the 
household of Charles VI., was tried, tortured, and executed by Commissioners. 
He was buried in the church of the Celestines, and when Francis I. came to see 
his tomb, the king said, " This Montaign has been condemned by justice." " No, 



AND SELF-GOVERNMENT. i0 y 

executive, (so much insisted on by the Stuarts, and, indeed, by 
all rulers who claim to rule by a higher law than the law 
of the land,) nor to mere " proclamations" of the crown or 
executive, nor to the dictation of mobs, nor of any people 
who claim to be the people ; nor, indeed, to any dictates of the 
people except in its political, that is in its organized and 
organic, capacity. 

All the modern constitutions by which it is endeavored to 
transplant Anglican liberty, declare that the citizen shall be 
subject to his " natural courts" only. The charter of Louis 
XVIII. prohibited cours prevotales. 1 It had become very 
necessary to point out in the charter that every one should 
be judged by his " natural court," because the extraordinary 
courts had been a great grievance in former times, and because 
Napoleon had introduced le jugement administratis although 
lettres de cachet remained abolished in his reign. An admin- 
istrative or executive judgment simply meant decisions, im- 
prisonment or other punishments, although the courts had 
absolved the prisoner, or taking effect without the action of 
any court. It is nothing less than plain police government. 

The American Declaration of Independence has a passage 
referring to the subject of" natural courts." It enumerates as 
one of the grounds of justification for separating from England, 
that the government has " transported us beyond the seas to 
be tried for pretended offences." 

All continental governments which were bent on defeating 
the action of the new constitutions, even while they existed, 
resorted to declaring large cities and entire districts in " a 
state of siege," thus subjecting them to martial law. All abso- 
lute governments, whether monarchical or democratic, have 

sire," answered the simple monk who guided the king, "he was condemned by 
Commissioners." Histoire du Parlement de Paris, Amsterdam, 1769, ch. 4. 
Commissioners as judges form a " packed" court, do not feel lasting responsi- 
bility, and, in cases of importance to the executive, act on the foregone con- 
clusion almost as distinctly as the "judges" of the Duke d'Enghien did. In 
this consists the danger of courts-martial, when established for the ordinary 
courts. 

1 See the French charter in the Appendix. 



108 ON CIVIL LIBERTY 

ever found the regular course of justice inconvenient, and made 
war upon the organic action of the law, which proves its 
necessity as a guarantee of liberty. 

It is obvious that, whatever wise provisions a constitution 
may contain, nothing is gained if the power of declaring 
martial law be left in the hands of the executive; for de- 
claring martial law, or proclaiming a place or district in a 
state of siege, simply means the suspension of the due course 
of law, of the right of habeas corpus, of the common law, and 
of the action of courts. The military commander places the 
prisoners whom he chooses to withdraw from the ordinary 
courts before courts-martial. There were many French de- 
partments in " a state of siege" before the coup d'etat. After 
it, all France may be said to have been so. 

In England, when there is a rebellion or wide-spread dis- 
order, threatening life and property, a regular act of parlia- 
ment is passed, suspending the habeas corpus. The act states 
the necessity or reasons, and the time of its duration. This 
last point is of great importance. 1 

We have seen already under what circumstances our -con- 
stitution permits the suspension of the habeas corpus ; and that 
this cannot be done by the president alone, but by congress 
only, need hardly be mentioned. 2 

It has been necessary to mention here the supremacy of 
the law as a peculiar guarantee of personal liberty 7 . We shall 
return to the subject, and consider it in its wider relations. 

II. The preceding guarantee of the supremacy of the law 
leads to a principle which, so far as I know, it has never been 
attempted to transplant from the soil inhabited by Anglican 
people, and which nevertheless has been in our system of liberty 

1 The act by which martial law was declared in Ireland, during the rebellion 
in 1798, can be seen in Tytler's Essay on Military Law, appendix, No. 6. I 
copy this reference from an article, Martial Law, in Political Dictionaiy, 
London, 1846. 

2 [For the question raised in our late war as to the president's power to do 
this, and for the limitation that the suspension of habeas corpus allows no illegal 
arrests, but only the detention of a prisoner arrested for good cause, comp. Pome- 
roy's Constit. Law, p. 475.] 



AND SELF-GOVERNMENT. 109 

the natural production of a thorough government of law, as 
distinguished from a government of functionaries. It is so 
natural to the Anglican race that few think of it as essentially 
important to civil liberty, and it is of such vital importance 
that none who have studied the acts of government elsewhere 
can help recognizing it as an indispensable element of civil 
liberty. 

It is this : that, on the one hand, every officer, however high 
or low, remains personally answerable to the affected person 
for the legality of the act he executes, no matter whether his 
lawful superior has ordered it or not, and even whether the 
executive officer had it in his power to judge of the legality 
of the act he is ordered to do, or not; and that, on the other 
hand, every individual is authorized to resist an unlawful act, 
whether executed by an otherwise lawfully appointed officer 
or not. The resistance is made at the resister's peril. In all 
other countries, obedience to the officer is demanded in all 
cases, and redress can only take place after previous obedience. 1 
Occasionally, this principle acts harshly upon the officer; but 
we prefer this inconvenience to the inroad which its abandon- 
ment would make in the government of law. We will not 
submit to individual men, but only to men who are, and when 
they are, the organs of the law. 2 A coup detat, such as we 
have lately seen in France, would not be feasible in a nation 
accustomed to this principle. All the answer which the police 
officers gave to men. like General Cavaignac, who asked them 
whether they were aware that they committed a high crime 
in arresting a representative of the people, was, that they had 
orders from their superior, and had nothing to do with the 
question of legality. It is obvious how much this peculiar 
Anglican principle heightens the importance of obedience to 
the officer, representing the law, and the law alone. Lawless- 
ness in this, as in all other cases, is peculiarly incompatible 
with the spirit of Anglican freedom. 



1 Extreme cases, as a matter of course, would be allowed to form exceptions. 

2 I must again refer to the Political Ethics, chapter on Obedience to the Law. 



HO ON CIVIL LIBERTY 

As an instance of the opposite to the French principle of 
that huge institution called gendarmerie, the following simple 
case may be taken : 

A sheriff, provided with the proper warrant, has the right, 
after request and denial, to open the house door, forcibly to 
open it, if a third party has taken refuge in it, or sent his 
goods there. "Every man's house is his castle," will not 
protect any one but the bona fide dweller in it. Nevertheless, 
the sheriff provided with his legal warrant does it at his own 
peril ; for, if he break open the house, however well his suspi- 
cion may be grounded, and neither the party nor the goods 
sought for be there, the sheriff is a trespasser, and as such 
answerable to the inhabitant of the house, before the courts of 
the land. This may be inconvenient in single cases. It may 
be that the maxim which has been quoted has "been carried 
as far as the true principles of political practice will warrant — 
perhaps beyond what in the scale of sound reason and good 
policy they will warrant." x I doubt it, whatever the inconve- 
nience in single cases may be. All law is inconvenient in some 
cases ; but even if this opinion were founded, how august, on 
the other hand, appears the law — I do not mean a single 
statute, but the whole self-evolving system of a common law 
of the land — that errs on the side of individual liberty against 
the public power and the united weight of government ! 

This Anglican principle might be supposed by those who 
are not familiar with it, that fear of resolute action in the 
officer would be the consequence. But this is not the case, 
as experience in England and the United States sufficiently 
proves. When magistrates and officers who, according to 
their sphere of action, ought not to be elective, are made 
elective, timidity or time-serving encroaches indeed upon the 
resolute performance of the officer's duty ; but this has nothing 
to do with the principle here treated. Nor is it denied that 
exceptions may take place. A police officer lately stated in 



1 Sir M. Foster, Discourse of Homicide, p. 319. I quote from Broom's Legal 
Maxims. 



AND SELF-GOVERNMENT. IU 

open court in London, when asked why he *had not performed 
a certain act clearly lying within the sphere of his duty, that it 
was so difficult for him to know what was lawful for him to 
do, according to the opinion of the magistrate, that he had 
preferred not to act. No machinery works without occasional 
friction. Compare with this the ruthless European continental 
police, and choose. The reader will find at the end of the foot- 
note appended to this page an amusing illustration of the fact 
that monarchical absolutism does not necessarily give freedom 
or boldness of action to officers. 1 

The reader has seen from the passage on warrants, which I 
gave in a preceding part of this work, how far this principle 
is carried in the case of resisting an officer, even to the killing 
him, if his warrant be not wholly correct. Another proof of 
the uniform acknowledgment of this principle and essential 
pillar of civil liberty is this, that when a British minister 



1 The very opposite to the Anglican principle, that each officer remains re- 
sponsible for the legality of his own acts, prevails in China and Japan, and prob- 
ably in all thoroughly systematized Asiatic despotisms. The superior officer is 
punished for the offence and even for the misfortune of the inferior, or for the 
accident which may have befallen the latter. The blows with the bamboo, which 
in China go down from the superior through many grades to the inferior, are 
well known. Before the late opening of the Japanese ports to the Americans 
and Europeans, a Christian vessel was driven on the shores of Japan. The 
governor ripped open his belly, and the viceroy in whose province the wreck 
had happened was imprisoned for one hundred days, although he was at the 
lime a hundred miles from the place of the disaster. There is also, however, in 
these cases, to be taken into consideration the confusion of moral laws, and phys- 
ical laws, and fate, which pervades the whole Chinese code, the ethics of Japan, 
the moral code of all early nations, and which we find in the early mythology of 
all nations. The earliest period of Greek history and mythology furnishes us 
with many illustrations. 

Mr. King, in his Notes of the Voyage of the Morrison, New York, 1839, gives 
the following anecdote : " We had inquired of the Japanese how their officers 
were to be distinguished ; whether they wore any badges besides the ever-famous 
'two sabres.' The answer was, If you see a man come on board that trembles 
very much, he is a mandarin." 

The student must take care not to consider the fining of companies for want of 
caution, skill, or honesty in the persons or officers employed by them, (now so 
common in consequence of railway accidents,) as invalidating the principle laid 
down in the text. 



112 ON CIVIL LIBERTY 

obtains an act of indemnity, which is an act of impunity for 
certain illegal acts, which, nevertheless, necessity demanded, 
the act of indemnity is never for him alone, but it expresses 
that the act shall also cover what the inferior officers have 
done by the direction of the minister in the premises. 1 

In conclusion, I would remark that it is wholly indifferent 
who gives the order. If it be illegal, the person who executes 
it remains responsible for the act, although the president or 
the king should have ordered it, or the offending person 
should be a soldier obeying his commander. It is a stern law, 
but it is a sacred principle, a strict government of law cannot 
dispense with it, and it has worked well. 



1 For instance, in the scarcity of grain in the year 1766, Chatham prohibited 
exportation of grain. When parliament met, he read a passage from Locke, to 
show that what he had done was not legal yet right. Indemnity was passed for 
him and those who had acted under him. In 181 8, ministers asked and obtained 
indemnity for the suspension of habeas coipus, for themselves and magistrates 
under them. Many other instances might be given. See Lieber's Legal 
and Political Hermeneutics, note to page 79. Acts of indemnity cannot be 
passed with us, because we have a constitution of which the legislature itself is 
but the creature, and we cannot pass ex post facto laws. All that- remains for us 
to do in cases of absolute necessity or transcendent utility is to pass over the 
occurrence in silence; or congress may show its concurrence by aiding in the 
act. This was the case when Mr. Jefferson purchased the territory of Louisiana. 
Still, congress cannot make the act constitutional; though the silence of con- 
gress, or the countenance given by it to an act, gives it such apparent legality, that 
we find in the present time (1859) many men calling themselves adherents to the 
strictest interpretation of the constitution, and insisting on liberal interpretation, 
urging the purchase of the island of Cuba, as if the constitution, which itself 
declares that it permits nothing but what it distinctly and positively grants, had 
allowed the purchase of foreign territory. 



AND SELF-GOVERNMENT. 113 



CHAPTER XI. 

QUARTERING SOLDIERS. THE ARMY. 

12. Governments, if not very closely hedged in, have it in 
their power to worry citizens into submission by many indi- 
rect methods. One of these, frequently resorted to since the 
introduction of standing armies, is, that soldiers are billeted 
with the disaffected citizens. An insolent soldiery, supported 
by the executive, find a thousand ways of annoying, insulting, 
and ruining the family with whom they are quartered. It has 
been deemed necessary, therefore, specially to prohibit the 
quartering of soldiers with citizens, as an important guarantee 
of civil liberty. The English Bill of Rights, " declaring the 
rights and liberties of the subject," of 1688, enumerates in 
the preamble, as one of the proofs that James II. "did endeavor 
to subvert and extirpate" . . . "the laws and liberties of this 
kingdom," his " raising and keeping a standing army within 
the kingdom in time of peace, without consent of parliament, 
and quartering soldiers contrary to law." I It is in England, 
therefore, a high offence to quarter soldiers without consent of 
parliament ; and the Constitution of the United States ordains 
that " no soldier shall in time of peace be quartered in any 
house without the consent of the owner, nor in time of war, 
but in a manner to be prescribed by law." The framers of the 
constitution, it will be observed, were very exact in drawing 
up this paragraph. 

Persons not versed in the history of civil liberty and of 
progressive absolutism might be surprised at this singling out 
of quartering soldiers in documents of such elevated character 



1 [See the Petition of Right in Appendix V., and Forster's Life of Sir John 
Eliot, for earlier complaints about this old outrage.] 

8 



U4 



ON CIVIL LIBERTY 



and condensed national demands as the Bill of Rights and the 
American Constitution are; but the " dragonnades" of Louis 
XIV. in France, of James II. in Scotland, and those of more 
recent and present date in certain countries, furnish sufficient 
justification for this specific guarantee. 

13. The preceding safeguard, although justly pointed out 
separately, is still only part of the general one that the forces 
must be strictly submitted to the law. The navy cannot be, 
in its nature, so formidable an instrument in the hands of the 
executive as the army. It cannot be brought to bear upon 
the people ; it is not centralized in its character, and it cannot 
surround the ruler. There are many other reasons why the 
navy, the floating bulwarks of a nation, has always shown an 
inherent affinity with the popular element, and why free nations 
only can have efficient navies or merchant fleets. 1 

It is far different with the land forces. Ever since standing 
armies have been established, it has been necessary, in various 
ways, to prevent the army from becoming independent of the 
legislature. There is no liberty, for one who is bred in the 
Anglican school, where there is not a perfect submission of 
the army to the legislature of the people. We hold it to be 
necessary, therefore, to make but brief appropriations for the 
army. The King of England cannot raise an army, or any 
part of it, without act of parliament ; 2 the army-estimates are 
passed for one year only ; so that, were parliament to refuse 
appropriations, after a twelvemonth the army would be dis- 
solved. The mutiny-bill, by which power is given to the king 
to hold courts-martial for certain offences in the army, is like- 
wise passed for a year only; so that, without repassing it, 



1 [The individual nature of the seaman is developed by many of his duties, 
while armies act chiefly as bodies and are directly under command.] 

2 The guards of Charles II. were declared anti-constitutional, and the army of 
James II. was one of the evidences by which he was presumed to have abdicated ; 
that is, in other words, one of his breaches of the fundamental law of the land. 
A new sanction was given to this principle in the sixth article of the Bill of 
Rights, which runs thus : "A standing army, without the consent of parliament, 
is against law." 



AND SELF-GOVERNMENT. 115 

the crown would have no power even to keep up military 
discipline. 

The Constitution of the United States makes the president, 
indeed, commander-in-chief, but he cannot enlist a man, or pay 
a dollar for his support, without the previous appropriation by 
congress, to which the constitution gives "power to make 
rules for the government and regulation of the land and naval 
forces," and to which it denies the authority of making any 
appropriation for the support of the national forces for a longer 
term than two years. 

The importance of this dependence of the army upon the 
civil power has been felt by all parties. While the people are 
bent on submitting the army to the legislature, the govern- 
ments, which in the late European struggles were anxious to 
grant as little liberty as possible, always endeavored to exclude 
the army from the obligation of taking the constitutional oath. 
Constitutional oaths, like other political oaths, are indeed no 
firm guarantee in times of civil disturbance ; but where cir- 
cumstances are such that people must start in the career of 
freedom with an enacted constitution, it is natural and neces- 
sary that the army should take the oath of fidelity to the 
fundamental law, like any other persons employed in public 
service, especially where the oath of allegiance to the monarch 
continues. The oath, when taken, we have already admitted, 
does not furnish any great security ; but in this, as in so many 
other cases, the negative assumes a very great and distinct 
importance, although the positive may be destitute of any 
direct weight. The refusal of this oath shows distinctly that 
the executive does not intend frankly to enter on the path of 
civil freedom. This was lately the case in Prussia, when it was 
the endeavor of the people to establish constitutional liberty. 

The Declaration of Independence says : " He has kept 
among us in times of peace standing armies without the con- 
sent of our legislatures." It is enumerated as a radical 
grievance, plain and palpable to every Anglican mind. Im- 
mediately after, the Declaration significantly adds : " He has 
affected to render the military independent of, and superior to, 



Il6 ON CIVIL LIBERTY 

the civil power." This "affected" is striking. The attempt 
of doing it, though the term " affected" indicates the want of 
success, is counted as a grievance sufficient to warrant, among 
others, an extinction of allegiance. Of the twenty-seven 
grievances enumerated in the Declaration as justification for a 
revolution, three relate to the army. 1 

Dr. Samuel Johnson, not biased, as the reader well knows, 
in favor of popular liberties, nevertheless showed that he was 
bred in England, when he speaks of " the greatest of political 
evils — the necessity of ruling by immediate force." 2 There 
is, however, a greater evil still — the ruling by immediate force 
when it is not necessary or against the people. 

Standing armies are not only dangerous to civil liberty be- 
cause directly depending upon the executive. They have the 
additional evil effect that they infuse into the whole nation — 
especially when they are national armies, so that the old sol- 
diers return continually to the people — a spirit directly oppo- 
site to that which ought to be the general spirit of a free peo- 
ple devoted to self-government. A nation of freemen stands 
in need of a pervading spirit of obedience to the laws ; an 
army teaches and must teach a spirit of prompt obedience to 
orders. Habits of disobedience and of contempt for the citi- 
zen are produced, and a view of government is induced which 
is contrary to liberty, self-reliance, self-government. Com- 
mand ought to rule in an army ; self-development of law and 
self-sustaining order ought to pervade a free people. A Ger- 
man king, in one of his throne speeches, when a liberal spirit 
had already manifested itself in that country, said : " The will 
of one must ultimately rule in the government, even as it is in 
the camp." This shows exactly what we mean. The entire 
state, with its jural and civic character, is compared to a 



1 A remarkable debate took place in the British commons in April, 1856, 
when Mr. Cowan brought under the notice of the house the billeting system 
pursued in Scotland, according to which "militia and troops of the line are 
billeted upon private houses in Scotland." " It is an intolerable grievance." 
Redress was obtained. 

2 Considerations on the Corn Laws, by Dr. Samuel Johnson. 



AND SELF-GOVERNMENT. 117 

camp, and ruinous inferences are drawn from the com- 
parison. 

The officers of a large army are in the habit of contemptu- 
ously speaking of the " babbling lawyers." Les legistes have 
always been spoken of by the French officers in the same tone 
as " those lawyers" were talked of by Strafford and Laud. 
Where the people worship the army, an opinion is engendered 
as if really courage in battle were the highest phase of 
humanity ; and the army, in turn, more than aught else, leads 
to the worship of one man — so detrimental to liberty. All 
debate is in common times odious to the soldiers. They 
habitually ridicule parliamentary debates of long duration. 
Act, act, is their cry, which in that case means : Command 
and obey are the, two poles round which public life ought to 
turn. A man who has been a soldier himself, and has seen 
the inspiring and rallying effect which a distinctive uniform 
may have in battle — the desire not to disgrace the coat — is not 
likely to fall in with the sweeping denunciations of the uniform, 
now frequently uttered by the "peace-men;" but it is true 
that the uniform, if constantly worn, and if the army is large, 
as on the continent of Europe, greatly aids in separating the 
army from the people, and in increasing that alienating esprit 
de corps which ought not to exist where the people value their 
liberty. Modern despotism carefully fosters this spirit of 
separation, because it relies mainly on the standing army. 
The insolence of the officers of Napoleon I. rose to a frightful 
degree, even in France itself; and many startling events have 
lately occurred in that country, showing how far Napoleon III. 
indulges his officers in insulting and maltreating the citizen. 1 
No security whatever arises from the fact that the army is 
" democratic" in its character. On the contrary, the danger is 
only the greater, because it makes the army apparently a part 
of the people ; the people themselves look to it for one of the 
careers in which they may expect promotion, (not quite unlike 
the church in the middle ages,) while, in spite of all this, the 



I write at the beginning of 1859. 



Il8 ON CIVIL LIBERTY 

army becomes a secluded caste, essentially opposed to the 
aspirations of the people. No better illustration is afforded 
in history, of this important fact, than by the present state of 
things in France. 

Nor is the case better when the army is the ruling body, 
and its officers belong exclusively to the country nobility, 
'n a country where every son of a nobleman is likewise noble, 
i ad a large, poor nobility is the consequence. A numerous 
and poor nobility is one of the most injurious and ruinous 
things in a state. It leads infallibly to that spirit which tries 
to make up by arrogance what it does not possess in wealth 
or substance, which considers the state as an institution made 
for the provision of the poor noblemen, and disregards the 
true and the high interests of the nation— a state of things 
which revealed itself, for Prussia, in the terrible disaster at 
Jena, in 1806, and which has received in that and other Ger- 
man countries, of late, the distinct appellation of Junkerthiim. 

Standing armies, therefore, wherever necessary — and they 
are necessary at present, as well as far preferable to the 
medieval militia — ought to be as small as possible, and com- 
pletely dependent on the legislature for their existence. Such 
standing armies as we see in the different countries of the 
European continent are wholly incompatible with civil liberty, 
by their spirit, number, and cost. 

A perfect dependence of the forces, however, requires more 
than short appropriations, and limited authority of the execu- 
tive over them. It is further necessary — because they are 
under strict discipline, and therefore under a strong influence 
of the executive — that these forces, and especially the army, 
be not allowed to become deliberative bodies, and that they 
be not allowed to vote as military bodies. Wherever these 
guarantees have been disregarded, liberty has fallen. These 
are rules of importance at all times, but especially in countries 
where, unfortunately, very large standing armies exist. In 
France, the army consists of half a million, yet universal 
suffrage gave it the right to vote, and the army as well as the 
navy did vote to justify the second of December, as well as to 



AND SELF-GOVERNMENT. 1 19 

make Louis Napoleon Bonaparte emperor. This may be in 
harmony with French "equality;" it may be democratic, if this 
term be taken in the sense in which it is wholly unconnected 
with liberty ; all that we — people with whom liberty is more 
than a theory, or something aesthetically longed for, and who 
learn liberty as the artisan learns his craft, by handling it — 
all that we know is, that it is not liberty ; that it is directly 
destructive of it. 1 

It was formerly the belief that standing armies were incom- 
patible with liberty, anfl a very small one was granted to the 
King of England with much reluctance; but in France we see 
a gigantic standing army, itself incompatible with liberty, for 
which in addition the right of voting is claimed. 

The Bill of Rights, and our own Declaration of Independ- 
ence, show how large a place the army occupied in the minds 
of the patriotic citizens and statesmen who drew up those 
historic documents, the reasons they had to mention it re- 
peatedly, and to erect fences against it. 

Military bodies ought not to be allowed even the right of 
petitioning, as bodies. History fully proves the danger, that 
must be guarded against. 2 English history, as well as that of 
other nations, furnishes us with instructive instances. 

A wise medium is necessary ; for an army without thorough 



1 The French soldiers vote at present, whenever universal suffrage is appealed 
to — not with the citizens, but for themselves, and the way in which this military 
voting generally takes place is very remarkable. 

2 I do not feel authorized to say that the Anglicans consider it an elementary 
guarantee of liberty not to be subjected to the obligation of serving in the army, 
but certain it is that, as matters now stand and as our feelings now are, we should 
not consider it compatible with individual liberty — indeed, it would be considered 
as intolerable oppression — if we were forced to spend part of our lives in the 
standing army. It would not be tolerated. The feeling would be as strong 
against the French system of conscription, which drafts by lot a certain number 
of young men for the army, and permits those who have been drafted to furnish 
substitutes, as against the Prussian system, which obliges every one, from the 
highest to the lowest, to serve a certain time in the standing army, with the ex- 
ception only of a few "mediatized princes." The Anglicans, therefore, may be 
said to be at present unequivocally in favor of enlisted standing armies, where 
standing armies are necessary. 



123 ON CIVIL LIBERTY 

unity is useless ; indeed, worse than useless. It produces a 
thousand evils without any good ; while it must always be con- 
sidered as a distinct postulate of Civil Liberty, that a well- 
organized army is of itself a subject of great danger. To 
make an efficient army, in modern times, harmonize with all 
the demands of substantial civil liberty is doubtless one of the 
problems of our race and age, and one most difficult to solve 
— forming, perhaps, with the problem of carrying out a high 
degree of individual liberty in large and densely-peopled cities, 
the two most difficult problems of high, patriotic, and substan- 
tial statesmanship. 

14. Akin to the last-mentioned guarantee is that which 
secures to every citizen the right of possessing and bearing 
arms. Our constitution says : " The right of the people to 
keep and bear arms shall not be infringed upon ;" and the Bill 
of Rights secured this right to every Protestant. It extends 
now to every English subject. It will hardly be necessary to 
add, that laws prohibiting secret weapons, or those which 
necessarily endanger the lives of the citizens, are no infringe- 
ment of liberty ; on the contrary, liberty resting necessarily 
on law, and a lawful, that is peaceful, state of the citizens, 
liberty itself requires the suppression of a return to force and 
violence among the citizens — a fact by no means sufficiently 
weighed in recent times in America. 

Whenever attempts at establishing liberty have lately been 
made on the continent of Europe, a general military organiza- 
tion of the people, or " national guards," has been deemed 
necessary ; but we cannot point them out as characteristics of 
Anglican liberty. 



AND SELF-GOVERNMENT. 121 



CHAPTER XII. 



PETITION. ASSOCIATION. 



15. We pass over to the great right of petitioning, so jeal- 
ously suppressed wherever absolute power rules or desires to 
establish itself, so distinctly contended for by the English in 
their revolution, and so positively acknowledged by our con- 
stitution. 

An American statesman of great mark has spoken lightly 
of the right of petition in a country in which the citizens are 
so fully represented as with us; 1 but this is an error. It is a 
right which can be abused, like any other right, and which in 
the United States is so far abused as to deprive the petition of 
weight and importance. It is nevertheless a sacred right, 
which in difficult times shows itself in its full magnitude, fre- 
quently serves as a safety-valve, if judiciously treated by the 
recipients, 2 and may give to the representatives or other bodies 
the most valuable information. It may right many a wrong, 
and the privation of it would at once be felt by every freeman 
as a degradation. The right of petitioning is indeed a neces- 
sary consequence of the right of free speech and deliberation, 
a simple, primitive, and natural right. As a privilege it is not 
even denied the creature in addressing the Deity. It is so 



1 It was stated by him that the right of petition was of essential value only in 
a monarchy, against the encroachments of the crown. But this whole view was 
unquestionably a confined one, and caused by irritation against a peculiar class 
of persevering petitioners. 

* There is no more striking instance on record, so far as our knowledge goes, 
than the formidable petition of the chartists in 1848, and the calm respect with 
which this threatening document was received by the commons, after a speech 
full of dignity and manly acknowledgment of the people by Lord Morpeth, now 
Earl of Carlisle. 



122 ON CIVIL LIBERTY 

natural a right, in all spheres where there are superiors and 
inferiors, that its special acknowledgment in charters or by- 
laws would be surprising, had not ample experience shown the 
necessity of expressing it. 1 

Where the government is founded on the parental principle, 
or where the despot appears as an earthly Providence, the 
petition of individuals plays, naturally, an important part, so 
long as it does not become either dangerous or troublesome, 
or unwelcome to the officers near the person of the monarch. 

The Emperor Nicholas of Russia was often spoken to in 
the : treets by petitioners ; while, on the other hand, we re- 
member a royal decree in Prussia, published about thirty 

1 The discussion of petitions in the house of commons seems to have under- 
gone a marked change, as will appear from the following remarks of Lord 
Brougham, which he made in the house of lords in June, 1853, when the exten- 
sion of the time of the income tax was under debate. Lord Brougham said that 
he did not expect that the income tax would expire in i860. He recalled the 
circumstances under which the old income tax was repealed, in defiance of the 
government of that day ; through the instrumentality of nightly discussions on 
petitions — a popular privilege no longer allowed in the house of commons. 

"In 1806, when the income tax was 10 per cent., it was imposed till the end 
of the war, and no longer. The war ended in 1814, but it broke out again in 
1815 ; and after its final termination a great fight against the continuance of the 
tax took place in the house of commons. It had been said that the present 
income tax would not be abandoned in i860; and he believed that the campaign 
which took place in parliament in 1816 could not be fought again. How was 
that campaign conducted? By means of petitions. For five or six weeks, from 
four o'clock in the afternoon till two or three o'clock in the morning, petition 
after petition was presented, and each petition was debated. If an account was 
given of the proceedings of the five or six weeks during which that campaign 
against the income tax was fought, it would describe one of the most extraordinary 
scenes ever witnessed within the walls of the house of commons, and a resistance 
which was perfectly successful. He might mention one incident which occurred 
during those discussions. After the fight had continued some three weeks or 
more, one night about eleven or twelve o'clock a question was put from the 
chair about bringing up the petitions; and all the members on one bench — who 
might have been supposed to be exhausted by the long sitting — rose in competi- 
tion with each other to catch, as it was called, the Speaker's eye; and the gallantry 
of those men in standing by their colors under such circumstances so struck the 
house that they were hailed with a general cheer of applause. He did not think, 
however, that in i860, unless a great change took place elsewhere, the same 
campaign and stand against the income tax would be possible." 



AND SELF-GOVERNMENT. \ 23 

years ago which directed that petitions must no longer be 
thrust upon the monarch personally. Under Frederic the 
Great, again, it was a common thing for petitioners to attract 
the king's attention by holding the petition above the heads 
of the crowd, when he would send an aid to take it. In China 
the right of petitioning the monarch is symbolically acknowl- 
edged, by the drum or gong at the palace gate, which the 
petitioner beats when he drops the petition into the receiving 
box. But the Chinese doubtless think and feel what the 
Russians express in the significant saying : " God lives high, 
and the emperor far." The missionary Hue informs us that 
popular meetings, where petitions are adopted or dismissed, 
are not rare in China. 1 

The political philosopher in treating of this subject must 
distinguish between petitions to the executive, (and as to peti- 
tions for pardon, which have become a most serious evil in the 
United States, the reader is referred to the paper on pardons 
in the Appendix ;) petitions of the army, which, history amply 
teaches, must be absolutely interdicted ; we need only remind 
the reader of the English history, and that of France ; and, 
lastly, petitions to the legislature. As to the latter, it is all- 
important for the cause of civil liberty, that is, the freedom of 
the people in earnest and in reality, that the petition, whatever 
demonstration of moral power or public opinion it may be, be 
unaccompanied by physical demonstration of crowds, armed 
or unarmed, in the legislative halls or outside. Indeed, they 
cease to be petitions and become physical threats or coercion. 
The history of the French revolution is almost one continued 
commentary on this position. The whole meaning of a legis- 
lature, as a necessary element of liberty, is that it be free ; and 
it ceases to be free, so soon as crowds threaten it. 

We maintain that the right of petitioning is important, and 
for this very reason it must neither be treated lightly, on the 



1 It would be a grave error, indeed, to conclude from this fact, or from the 
general democratic character of the Chinese system, that there is liberty in China 
— a conclusion as hasty as it would be to infer that freedom exists in France 
because the empire declares itself to be founded on universal suffrage. 



124 



ON CIVIL LIBERTY 



part of the petitioners, nor wrenched from its meaning and be 
changed into coercing threat. The petition in free states is 
an institution, and not an incident as in the despotic govern- 
ment. Resorted to as one of the civil agents by a free people, 
its distinct uses lie in its direct effect, in inciting and awakening 
public attention ; in keeping alive an important idea, although it 
may not lead to immediate action ; in countenancing those who 
desire to act and to be supported ; in showing public opinion 
concerning some distinct point ; in serving as a safety-valve in 
times of public excitement, and in being a substitute for unor- 
ganized and unreasoning crowds. Its dangers are the dangers 
of all agents whatever — its abuses, and the wide-spread weak- 
ness of men, which induces them inconsiderately to put down 
their names, rather than refuse the signature. 

1 6. Closely connected with the right just mentioned is the 
right of citizens peaceably to meet and to take public matters 
into consideration, and 

17. To organize themselves into associations, whether for 
political, religious, social, scientific, industrial, commercial, or 
cultural purposes. That this right can become dangerous, and 
that laws are frequently necessary to protect society against 
abuse, every one knows perfectly well who has the least 
knowledge of the French clubs in the first revolution. But it 
is with rights, in our political relations, as with the principles 
of our physical and mental organization — the more elementary 
and indispensable they are, the more dangerous they become 
if not guided by reason. Attempts to suppress their action 
lead to mischief and misery. What has been more abused 
than private and traditional judgment in all the spheres of 
thought and taste ? Yet both are necessary. What principle 
of our nature has led, and is daily leading, to more vice and 
crime than that on which the propagation of our species and 
the formation of the family depend, 1 or that which indicates 
by thirst the necessity of refreshing the exhausted body ? 



1 The so-called Shakers endeavor to extirpate this principle, and furnish us 
with an illustration of the evils arising from the endeavor. 



AND SELF-GOVERNMENT. 1 25 

Shall the free sale of cutlery be interfered with, because mur- 
ders are committed with knives and hatchets ? 

The associative principle is an element of progress, protec- 
tion, and efficient activity. The freer a nation, the more de- 
veloped we find it in larger or smaller spheres ; and the more 
despotic a government is, the more actively it suppresses all 
associations. The Roman emperors did not even look with 
favor upon the associations of handicrafts. 1 In modern times 
no instances of the power which associations may wield, and 
of the full extent which a free country may safely allow to 
their operations, seem to be more striking than those of the 
Anti-Corn-Law League in England, which, by gigantic exer- 
tions, ultimately carried free trade in corn against the strongest 
and most privileged body of land-owners that has probably ever 
existed, either in modern or ancient times; 2 and, in our own 
country, the Colonization Society, a private society, planting 
a new state which will be of great influence in the spreading 
cause of civilization— a society which, according to the Libe- 
rian declaration of independence, " has nobly and in perfect 
faith redeemed its pledges." In every country, except in the 
United States and in England, the cry would have been, 



1 [This is not borne out by facts, although the same broad statement has been 
made by others. Sodalitates were frowned upon, but collegia opificuui, although 
the state controlled and could dissolve them, were numerous. See the list in the 
Index in vol. iii. of the Orelli-Henzen Inscr. Latinoe; which shows that there 
must have been thousands of such unions, under the empire, all over the west. 
Comp. also Rein in Paully's Lexicon, under Collegium and Sodalitas. It is true, 
however, that despotism, especially in modern times, since the means of com- 
munication are better and more used, instinctively dreads combined action for 
any social, moral, or religious end, as dangerous to political power.] 

2 A careful study of the whole history of this remarkable association, which in 
no state of the European continent would have been allowed to rise and expand, 
is recommended to every student of civil liberty. It is instructive as an instance 
of perseverance; of an activity the most multifarious, and an organization the 
most extensive ; of combined talent and shrewd adaptation of the means to the 
end; and, which is always of equal importance, of a proper conception of the 
end according to the means at our disposal, without which it is impossible to 
do that which Cicero so highly praised in Brutus, when he said, Quid vult valde 
vult. 



126 OX CIVIL LIBERTY 

Imperium in imperio, and both would have been speedily put 
down. 

We may also mention our voluntary churches, or the Law 
Amendment Association hi England — a society which, so far 
as we can judge at this distance, has already produced most 
beneficial effects upon English legislation, and which in every 
other country occupied by our race, except in the United 
States, would be stigmatized as an imperium in imperio full 
of assumption. There is nothing that more forcibly strikes a 
person arriving for the first time from the European continent, 
either in the United States or in England, than the thou- 
sandfold evidences of an all-pervading associative spirit in all 
moral and practical spheres, from the almost universal com- 
mercial copartnerships and associations, the " exchanges" of 
artisans, and banks, to those unofficial yet national associa- 
tions which rise to real grandeur. Strike out from England 
or America this feature and principle, and they are no longer 
the same self-relying, energetic, indomitably active people. 
The spirit of self-government would be gone. In France, 
an opposite spirit prevails. Xot only does the government 
believe that it must control even-thing, but the people them- 
selves seem hardly ever to believe in success until the govern- 
ment has made the undertaking its own. 1 



1 I cannot forbear mentioning here one of those occurrences which, although 
apparently trivial, nevertheless show the constant action of a great principle, as 
the leaf of a tree reveals to the philosopher the operation of the vastest 
elements in nature. At a meeting of the Royal Academy at London in 1852, 
at which the ministers were present, the premier, Lord Aberdeen, said that "as 
a fact full of hope, he remarked that for several years the public, in the apprecia- 
tion of art, had outstripped the government and the parliament itself." 

The chief executive officer considers it a fact full of hope that the people 
have outstripped, in interest and action, the government and parliament. How 
differently would a similar case have presented itself in any of the continental 
countries ! 



AND SELF-GOVERNMENT, 127 



CHAPTER XIII. 



PUBLICITY. 



18. We now approach those guarantees of liberty which 
relate more especially to the government of a free country, 
and the character of its polity. The first of all we have to 
mention under this head is publicity of public business. This 
implies the publicity of legislatures and judicial courts, as well 
as of all minor transactions that can in their nature be trans- 
acted publicly, and also the publication of all important docu- 
ments and reports, treaties, and whatever else can interest the 
people at large. It further implies the perfect freedom with 
which reporters may publish the transactions of public bodies. 1 
Without the latter, the admission of the public would hardly 
amount in our days to any publicity at all. We do not assem- 
ble in the markets as the people of antiquity did. The millions 
depending upon public information, in our national states, 
could not meet in the assembly, as was possible in the ancient 



1 In the year 1857 the following case was decided in the court of common 
pleas at Columbia, S. C, in favor of the plaintiff. The city council held, in 
1855, a public meeting. The editor of one of the city papers, being present, was 
asked by the mayor whether he had come to take notes. The mayor, being an- 
swered in the affirmative, ordered the chief police officer to turn the editor out 
of the room, declaring at the time that he acted on the strength of a resolution of 
the city council. At a later period this procedure was defended on the ground 
that the city appoints a paper to give, officially, all the transactions of the board. 
Robert W. Gibbes vs. Edward J. Arthur and John Burdell. This novel case 
was reported with great care, and published with all the arguments, at Columbia, 
S. C, in 1857, under the title, Rights of Corporations and Reporters. The public 
owes thanks to the plaintiff for having perseveringly pursued this surprising case, 
the first of the kind, it would appear. The pamphlet contains letters of nearly 
thirty American mayors, testifying that reporters cannot be denied admission to 
the deliberations of the councils of their cities, although there be an appointed 
printer to the board. 



128 ON CIVIL LIBERTY 

city-states, even if we had not a representative government. 
The public journals are in some respects to modern freemen 
what the agora was to the Athenian, the forum to the Roman. 
A modern free city-state can be imagined without a public 
press ; a modern free country cannot ; although we must never 
forget the gigantic, and therefore dangerous, power which, 
under certain circumstances, a single public journal may 
obtain, and, consequently, ought to be counteracted by the 
means which lie in the publicity and freedom of the press itself. 

Publicity, in connection with civil liberty, means publicity in 
the transaction of the business of the public, in all branches — 
publicity in the great process by which public opinion passes 
over into public will, which is legislation ; and publicity in the 
elaboration of the opinion of the public, as well as in the pro- 
cess of ascertaining or enouncing it by elections. Hence the 
radical error of secret political societies in free countries. 
They are intrinsically hostile to liberty. 

Important as the printing of transactions, reports, and docu- 
ments is, it is nevertheless true that oral discussions are a most 
important feature of Anglican publicity of legislative, judicial, 
and of many of the common administrative transactions. 
Modern centralized absolutism has developed a system of 
writing and secrecy, and consequent formalism, abhorrent to 
free citizens who exist and feed upon the living word of liberty. 1 



1 The following passage is given here for a twofold purpose. Everything in it 
applies to the government of the pen on the continent of Europe, and it shows 
how similar causes have produced similar results in India and under English- 
men, who at home are so adverse to government writing and to bureaucracy. In 
the Notes on the Northwestern Province of India, by Charles Raikes, Magistrate 
and Collector of Mynpoorie, London, 1853, we find this passage : 

" Action, however, and energy, are what we now lay most stress upon, because 
in days of peace and,outward tranquillity these qualities are not always valued at 
their true price, and their absence is not so palpably mischievous as in more stir- 
ring times. There is more danger now of men becoming plodding, methodical, 
mere office functionaries, than of their stepping with too hasty a zeal beyond the 
limits of the law. There is truth, too, in Jacquemont's sneer — India is governed 
by stationery, to a more than sufficient extent ; and one of the commonest errors 
of our magistrates, which they imbibe from constant and early Indian associa- 
tions, is to mistake writing for action, to fancy that dictation will supply the place 



AND SELF-GOVERNMENT. 1 29 

Bureaucracy is founded upon writing, liberty on the breathing 
word. Extensive writing, pervading the minutest branches of 
the administration, is the most active assistant of modern cen- 
tralization. It systematizes a police government in a degree 
which no one can conceive of that does not know it from per- 
sonal observation and experience, and forms one of the greatest 
obstacles, perhaps the most serious difficulty, when nations, 
long accustomed to this all-penetrative agent of centralism, 
desire to establish liberty. I do not hesitate to point out 
orality, especially in the administration of justice, in legislation 
and local self-government, as an important element of our 
civil liberty. I do not believe that a high degree of liberty 
can be imagined without widely pervading orality; but oral 
transaction alone is no indication of liberty. The patriarchal 
and tribal governments of Asia, the chieftain government of 
our Indians, indeed all primitive governments, are carried on 
by oral transaction without any civil liberty. 



of exertion. In no other country are so many written orders issued with so 
much confidence, received with such respect, and broken with such complacency. 
In fact, as for writing, we believe the infection of the ' cacoethes scribendi' must 
first have grown up in the East. It pervades everything, but is more rampant 
and more out of place in a police office than anywhere else. It was not the 
magistrates who originated this passion for scribbling; but they have never suc- 
ceeded in repressing it, nor, while the law requires that every discontented old 
woman's story shall be taken down in writing, is it to be expected they ever will. 
The Khayeths worship their pen and ink on certain festivals, and there is a sort 
of < religio' attaching to written forms and statements, which is not confined to 
official life, but pervades the whole social polity of the writing tribes. An Indian 
scribe, whose domestic expenditure may average a sixpence a day, will keep an 
account-book with as many columns, headings, and totals as would serve for the 
budget of a chancellor of the exchequer. To Tudor Mul and such worthies we 
owe, no doubt, a great deal for the method and order which they infused into 
public records ; but we have also to thank these knights of the pen for the 
plaguiest long-figured statements, and the greatest number of such statements, 
which the world ever saw." Well may the continental European, reading this, 
exclaim, C'est tout comme chez nous ! In 1858, one of the most distinguished 
statesmen of France, universally known as a publicist, a former member, cabinet 
minister, and orator in the house of representatives, wrote from Germany, " I 
observe that the writing which I have always considered so injurious to our 
affairs in France is carried, if possible, to a still greater degree in this country." 

9 



130 



ON CIVIL LIBERTY 



Publicus, originally Populicus, meant that which relates to 
the Populus, to the state, and it is significant that the term 
gradually acquired the meaning of public, as we take it — as 
significant as it is that a great French philosopher, honored 
throughout our whole country, lately wrote to a friend : 
" Political matters here are no longer public matters." 1 

In free countries political matters relate to the people, and 
therefore ought to be public. Publicity informs of public mat- 
ters; it teaches, and educates, and it binds together. There is 
no patriotism without publicity, and though publicity cannot 
always prevent mischief, it is at all events an alarm-bell, which 
calls the public attention to the spot of danger. In former 
times secrecy was considered indispensable in public matters ; 
it is still so where cabinet policy is pursued, or monarchical 
absolutism sways ; but these governments, also, have been 
obliged somewhat to yield to a better spirit, and the Russian 
government now publishes occasionally government reports. 

That there are certain transactions which the public service 
requires to be withdrawn for a time from publicity is evident. 
We need point only to diplomatic transactions when not yet 
brought to a close. But even with reference to these it will 
be observed that a great change has been wrought in modern 
times, and comparatively a great degree of publicity now pre- 
vails in the foreign intercourse of nations — a change of which 
the United States have set the example. A state secret was 
formerly a potent word ; while one of our first statesmen wrote 
to the author, many years ago, " I would not give a dime for 
all the secrets that people may imagine to be locked up in the 
United States archives." 

It is a remarkable fact that no law insures the publicity of 
the courts of justice, either in England or the United States. 
Our constitution secures neither the publicity of courts nor 
that of congress, and in England the admission of the public 
to the commons or the lords is merely by sufferance. The 



1 This observation followed a request to write henceforth with caution, because, 
said he, choses politiquos ne sont plus ici choses publiques. 



AND SELF-GOVERNMENT. 



131 



public may at any time be excluded merely by a member ob- 
serving to the presiding officer that strangers are present, 
while we all know that the candid publication of the debates 
was not permitted in the time of Dr. Johnson. Yet so 
thoroughly is publicity now ingrained in the American and 
Englishman that a suppression of this precious principle cannot 
even be conceived of. If any serious attempt should be made 
to carry out the existing law in England, and the public were 
really excluded from the house of commons, a revolution would 
be unquestionably the consequence, and publicity would be 
added to the declaration of rights. We can no more imagine 
England or the United States without the reporting news- 
papers, than nature without the principle of vegetation. 

Publicity pervaded the system of American politics so gen- 
erally, that the framers of our constitution probably never 
thought of it, or, if they did, they did not think it worth while 
to provide for it in the constitution, since no one had doubted 
it. It is part and parcel of our common law of political ex- 
istence. They did not trouble themselves with unnecessaries, 
or things which would have had a value only as possibly 
completing a certain symmetry of theory. 

It is, however, interesting to note that the first distinctly 
authorized publicity of a legislative body in modern times 
was that of the Massachusetts house of representatives, which 
adopted it in 1766. 1 



1 I follow the opinion of Mr. Robert C. Winthrop, late Speaker of the house 
of representatives of the United States, and believe him to be correct, when in 
an address before the Maine Historical Society (Boston, 1849) ne says: "The 
earliest instance of authorized publicity being given to the deliberations of a 
legislative body in modern days, was in this same house of representatives of 
Massachusetts, on the 3d day of June, 1766, when, upon motion of James Otis, 
and during the debates which arose on the question of the repeal of the stamp 
act, and of compensation to the sufferers by the riots in Boston to which that act 
had given occasion, a resolution was carried ' for opening a gallery for such as 
wished to hear the debates.' The influence of this measure in preparing the 
public mind for the great revolutionary events which were soon to follow, can 
hardly be exaggerated." The American reader is referred to the note at the end 
of this chapter for an account of the introduction of publicity into the senate of 
the United States. 



132 ON CIVIL LIBERTY 

Publicity of speaking has its dangers, and occasionally ex- 
poses to grave inconveniences, as all guarantees do, and neces- 
sarily in a greater degree as they are of a more elementary 
character. It is the price at which we enjoy all excellence in 
this world. The science of politics and political ethics must 
point out the dangers as well as the formal and moral checks 
which may avert or migitate the evils arising from publicity 
in general, and public oral transaction of affairs in particular. 
It is not our business here. We treat of it in this place as a 
guarantee of .liberty, and have to show its indispensableness. 
Those who know liberty as a practical and traditional reality 
and as a true business of life, as we do, know that the question 
is not whether it be better to have publicity or not, but, being 
obliged to have it, how we can best manage to avoid its dan- 
gers while we enjoy its fullest benefit and blessing. It is the 
same as with the air we breathe. The question is not whether 
we ought to dispense with a free respiration of all-surround- 
ing air, but how, with free inhalation, we may best guard 
ourselves against colds and other distempers caused by the 
elementary requisite of physical life, that we must live in the 
atmosphere. 1 



1 Great as the inconvenience is which arises from the abuse of public speaking, 
and of that sort of prolixity which in our country is familiarly called by a term 
understood by every one, Speaking for Buncombe, yet it must be remembered 
that the freest possible, and therefore often abused, latitude of speaking, is fre- 
quently a safety-valve, in times of public danger, for which nothing else can be 
substituted. The debates in congress, when lately the Union itself was in danger, 
lasted for entire months, and words seemed fairly to weary out the nation when 
every one called for action. There was no citizen capable of following closely 
all those lengthy and occasionally empty debates, with all their lateral issues. 
Still, now that the who'le is over, it may well be asked whether there is a single 
attentive and experienced American who doubts that, had it not been for that 
flood of debate, we must have been exposed to civil disturbances, perhaps to the 
rending of the Union. 

Nevertheless, it is a fact that the more popular an assembly is, the more liable 
it is to suffer from verbose discussions, and thus to see its action impeded. This 
is especially the case in a country in which, as in ours, a personal facility of public 
speaking is almost universal, and where an elocutional laxity coexists with a 
patient tenacity of hearing, and a love of listening which can never be surfeited. 



AND SELF-GOVERNMENT. 1 33 

Liberty, I said, is coupled with the public word, and how- 
ever frequently the public word may be abused, it is neverthe- 
less true that out of it arises oratory — the aesthetics of liberty. 
What would Greece and Rome be to us without their Demos- 
thenes and Cicero ? And what would their other writers have 
been, had not their languages been coined out by the orator ? 
What would England be without her host of manly and mas- 
terly speakers ? Who of us could wish to see the treasures 
of our own civilization robbed of the words contributed by our 



It has its ruinous effect upon oratory, literature, the standard of thought, upon 
vigorous action, on public business, and gives a wide field to dull mediocrity. 
This anti-Pythagorean evil has led to the adoption of the " one-hour rule" in 
the house of representatives, in congress, and (in 1847) m tne supreme court of 
the United States. The one-hour rule was first proposed by Mr. Holmes, of 
Charleston, in imitation of the Athenian one-hour clepsydra — yes, the prince 
of orators had that dropping monitor by his side ! — and is now renewed by every 
new house. The English have begun to feel the same evil, and the adoption 
of the same rule was proposed in the commons in February, 1849. But ^ e 
debate concluded adversely to it, after Sir Robert Peel had adverted to Burke's 
glorious eloquence. Our one-hour rule, however, is not entirely new in modern 
times. In the year 1562 (on the 21st of July) the Council of Trent adopted the 
rule that the fathers in delivering their opinions should be restricted to half an 
hour, which having elapsed, the master of ceremonies was to give them a sign 
to leave off. Yet, on the same day, an exception was made in favor of Salmeron, 
the pope's first divine, who occupied the whole sitting, (History of the Life of 
Reginald Pole, by T. Phillips, Oxford, 1764, p. 397,) very much as in February, 
1849, the whole American house called " go on" when Governor McDowell had 
spoken an hour. He continued for several hours. 

Having mentioned the inconvenience of prolix speaking, it may not be im- 
proper to add another passage of the address of Mr. Winthrop, already mentioned. 
It will be recollected that this gentleman has been Speaker. He knows, there- 
fore, the inconvenience in its whole magnitude. "Doubtless," he says, "when 
debates were conducted with closed doors, there were no speeches for Buncombe, 
no clap-trap for the galleries, no flourishes for the ladies, and it required no hour 
rule, perhaps, to keep men within some bounds of relevancy. But one of the 
grea* sources of instruction and information, in regard both to the general meas- 
ures of government and to the particular conduct of their own representatives, 
was then shut out from the people, and words which might have roused them to 
the vindication of justice, or to the overthrow of tyranny, were lost in the utter- 
ance. The perfect publicity of legislative proceedings is hardly second to the 
freedom of the press, in its influence upon the progress and perpetuity of human 
liberty, though, like the freedom of the press, it may be attended with incon- 
veniences and abuses." 



134 



ON CIVIL LIBERTY 



speakers, from Patrick Henry to Webster? The speeches of 
great orators are a fund of wealth for a free people, from 
which the school-boy begins to draw when he declaims from 
his Reader, and which enriches, elevates, and nourishes the 
souls of the old. 

Publicity is indispensable to eloquence. No one speaks 
well in secret before a few. Orators are in this respect like 
poets — their kin, of whom Goethe, " one of the craft," says 
that they cannot sing unless they are heard. 

The abuse of public speaking has been alluded to. It is a 
frequent theme of blame and ridicule, frequently dwelt upon 
by those who disrelish " parliamentarism," but it is necessary 
to observe that if civil liberty demands representative legis- 
lative bodies, which it assuredly does, these bodies have no 
meaning without exchange and mutual modification of ideas, 
without debate, and actual debate requires the spoken word. 
I consider it an evil hour not only for eloquence, but for liberty 
itself, when our senate first permitted one of its members to 
read his speeches, on account of some infirmity. The true 
principle has now been abandoned, and written speeches are 
almost as common in congress as they were in the former 
house of representatives of France, where, however, I may 
state on authority, they became rarer as constitutional liberty 
increased and developed its energy. 

All governments hostile to liberty are hostile to publicity, 
and parliamentary eloquence is odious to them, because it is a 
great power which the executive can neither create nor con- 
trol. There is in imperial France a positive hatred against 
the " tribune? Mr. Cousin, desirous of leading his readers 
to compare the imperial system with that of the past govern- 
ments since the restoration, says of the Bourbons that, what- 
ever it may be the fashion to say of them, " they gave us 
at any rate the tribune," (the public word,) while Mr. de 
Morny, brother of Napoleon III., issued a circular to the 
prefects, when minister of the interior, in 1852, in which the 
publicity of parliamentary government is called theatricals. 
It is remarkable that this declaration should have come from a 



AND SELF-GOVERNMENT. 1 35 

government which, above all others, seems, in a great measure, 
to rely on military and other shows. 

Publicity begets confidence, and confidence is indispensable 
for the government of free countries — it is the soul of loyalty 
in jealous freemen. This necessary influence is twofold — con- 
fidence in the government, and confidence of society in itself. 
It is with reference to the latter that secret political societies 
in free countries are essentially injurious to all liberty, in ad- 
dition to their preventing the growth and development of manly 
character, and promoting vanity ; that they are, as all secret 
societies must inherently be, submissive to secret superior will 
and decision, — a great danger in politics, — and unjust to the 
rest of the citizens, by deciding on public measures and men 
without the trial of public discussion, and by bringing the in- 
fluence of a secretly united body to bear on the decision or 
election. Secret societies in free countries are cancers against 
which history teaches us that men who value their freedom 
ought to guard themselves most attentively. It would lead 
us too far from our topic were we to discuss the important fact 
that mysterious and secret societies belong to paganism rather 
than to Christianity, and we conclude these remarks by ob- 
serving that those societies which may be called doubly secret, 
that is to say, societies which not only foster certain secrets 
and have secret transactions, but the members of which are 
bound to deny either the existence of the society or their 
membership, are schools of untruth ; and that parents as well 
as teachers, in the United States, would do no more than per- 
form a solemn duty, if they should use every means in their 
power to exhibit to those whose welfare is entrusted to them, 
the despicable character of the thousand juvenile secret soci- 
eties which flourish in our land, and which are the preparatory 
schools for secret political societies. 1 



1 The following note consists of an article by Mr. James C. Welling, of the 
National Intelligencer, Washington City. It appeared on the 30th of October, 
1858, in consequence of some questions I had put regarding a previous article on 
my remarks on Publicity in the United States. Mr. Welling had doubtless free 
access to the ample stores of personal recollections possessed by the founders of 



136 ON CIVIL LIBERTY 

that public journal. The student of history will find it an instructive document, 
and I have preferred to give the whole, even with the introduction on the early 
intercourse between congress and the President of the United States, partly on 
account of its antiquarian interest, partly because it is not unconnected with the 
publicity of debate in the senate. 

Mr. Welling says that it has been remarked that the principle of publicity seems 
to have so thoroughly pervaded all the politics of the United States that the framers 
of our constitution never thought of it, or, if they did, they thought it hardly worth 
while to make special provision for it, since none doubted its observance. While 
this statement has a deep foundation in much of our civil history during the 
period of the revolution and the formation of our present constitution, it should 
not be forgotten that the sessions of our continental congress were held in secret, 
and everi after the formation of our present constitution, one branch of the* 
national legislature, for more than five years, sat with closed doors. We allude 
to the senate, whose deliberations, unlike those of the house of representatives, 
were conducted in secret during the whole of the first and second congresses, and 
also during a part of the third. As the particulars connected with this fact in 
our parliamentary history are perhaps not familiarly known to every reader, we 
have thought it might not be without interest to recall some of the reminiscences 
corroborative of a statement which at the present day, and with our established 
notions, must seem not a little extraordinary and anomalous. In doing so, we 
may take occasion to allude incidentally, by way of preface, to a few subsidiary 
topics relating to the forms of official intercourse existing between the executive 
and legislative departments of the government during the earlier days of the 
republic. 

The first session of the first congress of the United States held under the con- 
stitution framed and submitted by the federal convention in Philadelphia was 
begun in the city of New York on the 4th of March, 1789. Neither house, 
however, could at once proceed to the transaction of business, from the want of a 
quorum, which was secured in the popular branch only on the 1st of April fol- 
lowing, and in the senate on the 6th of the same month. On that day the latter 
body, having elected a president pro tern., proceeded, in the presence of the 
house of representatives, assembled in the senate chamber by invitation, to 
count the votes of the electors of the several states for President and Vice-Presi- 
dent of the United States, when it was found that George Washington was unan- 
imously elected to the former office by the voice of the eleven states then com- 
posing the Union, (Rhode Island and North Carolina not having yet adopted 
the constitution,) and that John Adams was chosen Vice-President by a majority 
of the votes cast for that office. The senate thereupon appointed Mr. Charles 
Thomson (long the clerk of the continental congress) to notify Gen. Washing- 
ton, and Mr. Sylvanus Bourne to notify John Adams, of their election to the 
offices for which they had been respectively designated. 

Mr. Adams took his chair as president of the senate on the 21st of the same 
month, and on the 30th Gen. Washington received the oath of office, as President 
of the United States, in the senate chamber, in the presence of both houses of 
congress, assembled on the occasion to witness the ceremonial. The oath was 



AND SELF-GOVERNMENT. 1 37 

administered by the chancellor of the State of New York, who proclaimed, as the 
same was accepted by the president, " Long live George Washington, President 
of the United States." The president then resumed the seat from which he had 
risen to take the oath, and, after a short pause, rose and delivered before the 
senate and house of representatives his inaugural address. On its conclusion, the 
president, the vice-president, the senate, and the house of representatives pro- 
ceeded to St. Paul's Chapel, in New York, where divine service was performed 
by the chaplain of congress, after which the president was reconducted to his 
house by a committee appointed for that purpose. 

After the celebration of these religious exercises the senate reassembled and 
appointed a committee to prepare an " answer to the president's speech." In 
the house of representatives a similar committee was appointed on the following 
day. The reply of the senate was read and adopted in that body on the 7th of 
May, and agreeably to previous arrangement was delivered to the president at his 
own house on the 18th following, the senate waiting upon the president for this 
purpose, with the vice-president, their presiding officer, at their head. The presi- 
dent, on receiving the address, made a brief and appropriate response. The 
reply of the house of representatives was read and adopted on the 5th of May, 
and, by a similar preconcert, was delivered to the president on the 8th of the 
same month, in a room adjoining the representatives' chamber, where the speaker, 
attended by the members of the house, placed in the president's hands a copy 
of the address, for which the president returned his thanks in a few appropriate 
remarks. 

Such was the nature of the ceremonial observed in the official communications 
interchanged between the president and the two houses of congress at the open- 
ing of every session of congress during the administration of Washington and 
John Adams. On the accession of Mr, Jefferson, the practice of delivering the 
annual presidential speech in person before both houses of congress at its open- 
ing was superseded by the present custom of sending a written message. And 
with this change the habit of preparing a formal reply on the part of both houses 
to the recommendations of the president fell into similar desuetude. Mr. Jef- 
ferson, it is well known, was subsequently accustomed to point to this change as 
one of the "reforms" he had effected in what he called the "Anglican tenden- 
cies" and "royal usages" of our government under the administration of the 
federalists.* 



* It may not be uninteresting to add that President Jefferson, at the time when this 
change was made, attributed it to other causes. His first annual address to both 
houses of congress was sent in on the 8th of December, 1801, and was accompanied 
with the subjoined letter, addressed to the presiding officer of each body : 

December 8, 1801. 

Sir: The circumstances under which we find ourselves at this place [Washington] 
rendering inconvenient the mode heretofore practised, of making by personal address 
the first communications between the legislative and executive branches, I have 
adopted that by message, as used on all subsequent occasions through the session. 
In doing this I have had principal regard to the convenience of the legislature, to the 
economy of their time, to their relief from the embarrassment of immediate answers 



138 



ON CIVIL LIBERTY 



To resume the principal topic of remark in the present article, we repeat that 
the senate, in the earlier days of the government, sat with closed doors, as well 
during its legislative as in its executive sessions. Its debates, therefore, unlike 
those of the house of representatives, were for a time held in secret; but it was 
provided by a resolution passed on the 19th of May, 1789, that one hundred and 
twenty copies of the journal of the legislative proceedings of the senate should be 
printed once a month for distribution among the members of the body, and, we 
suppose, for partial dissemination among the public, since it was provided that 
each member should be furnished with but a single copy on his own account. 

At this distance of time we may not perhaps be able to understand or state the 
reasons which determined the senate to sit with closed doors in all their delibera- 
tions, as still in those which pertain to executive business. It is probable that 
the habit grew out of the fact that the senate, in the original theory of its consti- 
tution, was regarded primarily as a confidential and advisory council to the ex- 
ecutive ; and, as is well known, its earlier sessions were pre-eminently occupied 
in executive business. In relation to measures of legislation it seems to have been 
conceived that its function was mainly revisory and deliberative; and hence the 
greater prominence of the house in initiating and debating not only " revenue 
bills," which it was provided by the constitution should be originated only by the 
representatives, but also other measures of federal legislation. In evidence of 
this fact we may state that the senate was wholly without standing committees 
until the year 1816, when during the second session of the fourteenth congress 
it was determined to provide for their appointment. In the house they had been 
raised by a standing rule as early as the year 1799, although at first their number 
was restricted to five — a committee respectively on elections, claims, commerce, 
ways and means, and on revisal and on unfinished business. 

The first executive business of the senate was transacted on the 25th of May, 
1789, when the president communicated for the advice and consent of the senate 
certain treaties made with the northern and northwestern Indians. At subse- 
quent sessions he sent in by letter his nominations for various offices appointed to 
be filled with the advice and consent of the same body. The senate having 
refused to ratify the nomination of Mr. Benjamin Fishbourn as naval officer for 
the port of Savannah, President Washington, on the 7th of August, addressed 
a message to the body vindicating his reasons for nominating that gentleman, 
and suggesting to the senate the expediency of communicating to him their views 
on occasions where the propriety of his nominations appeared questionable to 
them. 

Moved by this intimation of the president, the senate appointed a committee 
to wait on him for the purpose of concerting a mode of communication proper to 
be pursued between both parties in the formation of treaties and making appoint- 



on subjects not yet fully before them, and to the benefits thence resulting to the public 
affairs. Trusting that a procedure founded in these motives will meet their approba- 
tion, I beg leave, through you, sir, to communicate the enclosed message, with the 
documents accompanying it, to the honorable the senate, and pray you to accept, for 
yourself and them, the homage of my high respect and consideration. 

The Hon. the President of the senate. TH. JEFFERSON. 



AND SELF-GOVERNMENT. 139 

ments to office. Accordingly it was resolved that, in conformity with the presi- 
dent's pleasure, he might make his nominations to the senate either in writing or 
in person ; and it was further provided that for this purpose he might wait on the 
senate in their own chamber, (in which case he should occupy the chair of the 
president of the senate,) or might summon the president of the senate and the 
senators to meet him at such place as he should designate. It was provided, 
however, that all questions, whether in the presence or absence of the President, 
of the United States, should be put by the president of the senate, and " that the 
senators should signify their assent or dissent by answering, viva voce, aye or no." 
On the day following the adoption of this minute, that is on the 22d of August, 1789, 
it appears from the journal that the President of the United States came into the 
senate chamber, attended by General Knox, and laid before the senate a state- 
ment of facts in reference to the negotiation of certain treaties with various In- 
dian tribes. Desiring to fix certain principles on which the negotiations should 
be conducted, he reported to the senate a series of questions, to each of which 
he requested a categorical answer, to guide him in giving instructions to the com- 
missioners appointed to treat with the Indians. The questions were seven in 
number, and were considered throughout two daily sessions, in the presence of 
the president, and, as appears from the journal, of General Knox. 

How long the relations between the president and the senate remained on this 
footing we are unable to say with any accuracy, though the practice of his per- 
sonal attendance during their sessions in executive business seems to have been 
abandoned after a time; and authentic tradition records that its disuse was has- 
tened by the blunt speeches of certain senators, who intimated that the presence 
of the president operated as a restraint on them in canvassing the merits of the 
candidates submitted for their advice and consent. It soon became habitual for 
the president to communicate all his nominations to the senate in writing. 

As has been already stated, the proceedings of the senate, as well legislative 
as executive, were conducted during the first session with closed doors. During 
the second session of the first congress, which was begun in New York on the 
4th of January, 1790, the same custom was retained, though, as appeai-s from the 
journal, not without protest and dissent on the part of some senators. For it 
appears that on the 29th of April following it was moved " that the doors of the 
senate chamber shall be open when the senate is sitting in their legislative 
capacity, to the end that such of the citizens of the United States as may choose 
to hear the debates of this house may have an opportunity of so doing." This 
resolution, being postponed for consideration on the following day, was then 
taken up, and, after debate, rejected. 

At a third session of the first congress, begun in Philadelphia on the 6th of 
December, 1790, it was again proposed, on the 23d of February following, "that 
it be a standing rule that the doors of the senate chamber remain open whilst the 
senate shall be sitting in a legislative capacity, except on such occasions as, in 
their judgment, may require secrecy; and that this rule shall commence and be 
in force on the first day of the next session of congress." And to this end it 
■was proposed "that the secretary of the senate request the commissioners of the 
city and county of Philadelphia to cause a proper gallery to be erected for the 



1 40 ON CIVIL LIBERTY 

accommodation of the audience." After debate, extending through two days, 
the proposition was rejected by a vote of 9 yeas to 17 nays. The names of those 
voting in the affirmative are Messrs. Butler, Foster, Gunn, Hawkins, King, Lee, 
Maclay, Monroe, and Schuyler. Those voting in the negative were Messrs. 
Bassett, Carroll, Dalton, Dickinson, Ellsworth, Elmer, Few, Henry, Johnson, 
Johnston, Izard, Langdon, Morris, Read, Stanton, Strong, and Wingate. 

The first session of the second congress was begun at Philadelphia on the 24th 
of October, 1791. On the 26th of March following — a few weeks before the 
adjournment of congress at that session — a resolution identical in terms with that 
rejected at the last session of the first congress was moved by Mr. Monroe and 
seconded by Mr. Lee, both of Virginia. The proposition met with the same fate, 
receiving fewer votes than at the former session. Some days after the rejection 
of this resolution it was moved " that when the senate are sitting in their legis- 
lative capacity the members of the house of representatives may be admitted to 
attend the debates, and each member of the senate may also admit a number not 
exceeding two persons ; provided the operation of this resolution be suspended 
until the senate chamber is sufficiently enlarged." This proposition also failed 
to be adopted, receiving only six votes. 

We have recited these several and ineffectual attempts to procure the abroga- 
tion of this established rule of the senate for the purpose of showing that it did 
not grow up as an unregarded usage, but was founded on considerations satis- 
factory to a majority of the senate at that day. Nor does it appear to have been 
a question of party politics, since we find federalists voting with republicans for 
its abolition, and republicans voting with federalists for its retention. 

The first session of the third congress of the United States, which commenced 
at Philadelphia on the 2d of December, 1793, was destined to witness the over- 
throw of the rule which had previously obtained on this point. The senate was 
called at this session to consider and decide a question which elicited a large 
share of public interest, because of the political susceptibilities which had been 
awakened by its discussion. We allude to the contest raised respecting the 
eligibility of Mr. Albert Gallatin as a member of the senate from the state of 
Pennsylvania. On the first day of the session of that year a petition was pre- 
sented by Conrad Laub and others, representing that Mr. G. at the date of his 
election had not been, as the constitution requires, " nine years a citizen of the 
United States." The committee to which the whole subject was referred re- 
ported adversely to the claims of Mr. Gallatin on the 31st of December, and the 
report, after being read and ordered to lie over for future consideration, was 
taken up on the 9th of January following, and discussed through several suc- 
cessive days, when, on the 13th of the same month, the matter was re-committed 
to a special committee of elections appointed for the purpose of hearing both 
parties to the contest. Before this committee reported, and on the 16th of 
January, 1794, Mr. Martin, of North Carolina, moved the adoption of the follow- 
ing formal resolutions against the principles and policy of the existing regulations 
of the senate in regard to the secrecy of its deliberations : 

" Resolved, That in all representative governments, the representatives are 
responsible for their conduct to their constituents, who are entitled to such in- 
formation that a discrimination and just estimate be made thereof. 



AND SELF-GOVERNMENT. I 4 I 

" Resolved, That the senate of the United States, being the repi-esentatives of 
the sovereignties of the individual states, whose basis is the people, owe equal 
responsibility to the powers by which they are appointed, as if that body were 
derived immediately from the people, and that all questions and debates arising 
thereupon in their legislative and judiciary capacity, ought to be public. 

" Resolved, That the mode adopted by the senate of publishing their journals, 
and extracts from them, in newspapers, is not adequate to the purpose of circu- 
lating satisfactory information. While the principles and designs of the individual 
members are withheld from public view, responsibility is destroyed, which, on 
the publicity of their deliberations, would be restored; the constitutional powers 
of the senate become more important, in being more influential over the other 
branch of the legislatui'e ; abuse of power, mal-administration of office, more 
easily detected and corrected ; jealousies, rising in the public mind from secret 
legislation, prevented ; and greater confidence placed by our fellow-citizens in 
the national government, by which their lives, liberties, and properties are to be 
secured and protected. 

" Resolved, their/ore, That it be a standing rule that the doors of the senate 
chamber remain open while the senate shall be sitting in a legislative and judi- 
ciary capacity, except on such occasions as in their judgment may require secrecy; 
and that this rule commence on the day of ." 

These resolutions, being called up on the morrow, were postponed successively 
from day to day, when, on the 10th day of February, the committee which had 
Mr. Gallatin's case in charge made their report to the senate, and a day was 
fixed for its consideration. Immediately on the presentation of the report, it was 
moved by a member " that the doors of the senate be opened and continued open 
during the discussion upon the contested election of Albert Gallatin," which 
resolution was adopted on the nth of February, 1794. Meanwhile the series of 
resolutions abolishing the whole system of secrecy during legislative proceedings 
was still pending, and came up for consideration on the 19th of February, when 
each resolution was finally rejected, and a substitute offered in the following 
terms : 

" Resolved, That after the end of the present session of congress, and so soon 
as suitable galleries shall be provided for the senate chamber, the said galleries 
shall be permitted to be opened every morning, so long as the senate shall be 
engaged in their legislative capacity, unless in such cases as may, in the opinion 
of the senate, require secrecy, after which the said galleries shall be closed." 

This resolution tvas passed on the following day by a vote of nineteen yeas to 
eight nays. Those who voted in the affirmative were Messrs. Bradley, Brown, 
Butler, Edwards, Ellsworth, Foster, Gallatin, Gunn, Hawkins, Jackson, King, 
Langdon, Livermore, Martin, Monroe, Potts, Taylor, and Vining. Those who 
voted in the negative were Messrs. Bradford, Cabot, Frelinghuysen, Izard, 
Mitchell, Morris, Rutherfurd, and Strong. 

So this regulation of the senate was prospectively repealed and declared in- 
operative " after the present session,'' as by a previous resolution it had been 
expressly suspended during the debate on the case of Mr. Gallatin. Yet this 
step was not taken without reservation and caution, as is apparent from the fact 
that on the same day with the passage of the prospective resolution, it was unani- 
mously resolved " That, on a motion made and seconded to shut the doors of the 
senate, on the discussion of any business which may, in the opinion of a member, 



142 ON CIVIL LIBERTY 

require secrecy, the president shall direct the gallery to be cleared; and that 
during the discussion of such motion the doors shall remain shut." 

It only remains for us to add, in conclusion, that on the day following the 
passage of these resolutions the case of Mr. Gallatin was debated in open senate. 
The discussion extended through several days, and was conducted in the form 
of a trial, Mr. Gallatin affirming his right to the character of a citizen of the 
United States, and Mr. Lewis, a member of the Pennsylvania bar, attended by 
Mr. Schmyser, a member of the state senate of Pennsylvania, appearing as man- 
agers of the prosecution on the part of the petitioners. The pleadings, opened 
on the 21st of February, were closed on the 28th of the same month, when the 
senate decided that the election of Mr. Gallatin was void, in consequence of his 
not having been a citizen of the United States during the term of years required 
by the constitution as a qualification for membership in the United States senate. 
This case being settled, the doors of the senate were closed against the public 
during the residue of the session; but since that period, so far as we can recall, 
the legislative deliberations of the body have been uniformly conducted in 
public, without any interruption other than that which has sometimes arisen from 
the inadvertence of the senate, in resuming its legislative discussions after a secret 
session, and without thinking for a time to re-open the doors which had been 
closed during the transaction of executive business. 

We need hardly say that it has been frequently proposed to abolish the secrecy 
of the senate even when called to sit in judgment on the treaties formed or the 
nominations submitted by the executive branch of the government. But the 
propriety of such a reservation, made in behalf of diplomatic negotiations not yet 
brought to a close, is too manifest to need remark, while the freedom and inde- 
pendence which the senator should enjoy in canvassing the propriety and char- 
acter of the official appointments made with his advice and consent, plead 
perhaps with equal force in favor of retaining the rule so far as it relates to this 
other branch of executive business. The injunction of secrecy is from time to 
time removed by resolution of the senate from all subjects of popular concern 
whose publication can no longer frustrate the ends of prudent legislation. 



AND SELF-GOVERNMENT. 143 



CHAPTER XIV. 

SUPREMACY OF THE LAW. TAXATION. — DIVISION OF POWER. 

19. The supremacy of the law, in the sense in which it has 
already been mentioned, or the protection against the abso- 
lutism of one, of several, or the people, (which, practically, 
and for common transactions, means of course the majority,) 
requires other guarantees or checks of great importance. 

It is necessary that the public funds be under close and 
efficient popular control, chiefly, therefore, under the super- 
vision of the popular branch of the legislature, which is like- 
wise the most important branch in granting the supplies, and 
the one in which, according to the English and American 
fundamental laws, all money bills must originate. The Eng- 
lish are so jealous of this principle, that the commons will not 
even allow the lords to propose amendments affecting money 
grants or taxation. 1 2 



1 While these sheets were passing through the press, (March, 1859,) the house 
of representatives, at Washington, refused to consider certain amendments, 
passed in the senate, for the purpose of raising the postage on letters, the house 
declaring by resolution that these amendments interfered with the constitutional 
and exclusive right of the house to originate bills affecting the revenue. 

2 [Can the house of lords reject a money bill? In 1671 and 1689 it was 
admitted that they could. The lords, however, abstained from interfering 
with bills affecting the supplies, and only now and then rejected or postponed 
such bills as bore incidentally on supplies and taxation, until i860, when they 
postponed the second reading of the Paper Duties Repeal Bill for six months. 
This led to lively discussion of the privileges of the house of commons ; to a 
search for precedents ; and to resolutions of the commons-, one of which was 
that, although the lords had sometimes exercised the power of rejecting bills of 
various descriptions relating to taxation, yet the exercise of that power was 
"justly regarded by the commons with peculiar jealousy, as affecting the right to 
grant supplies, and to provide the ways and means for the service of the year." 
May, u. s. i. chap. 7, p. 449, whose words we have in part used.] 



144 0N CIVIL LIBERTY 

If the power over the public treasury, and that of imposing 
taxes, be left to the executive, there is an end to public liberty. 
Hampden knew it when he made the trifling sum of a pound 
of unlawfully imposed ship-money a great national issue; and 
our Declaration of Independence enumerates, as one of the 
gravest grievances against the mother country, that England 
"has imposed taxes without our consent." 

One of the most serious mistakes of those who are not 
versed in liberty is to imagine that liberty consists in withhold- 
ing the necessary power from government. Liberty is not of 
a negative character. It does not consist in merely denying 
power to government. Government must have power to per- 
form its functions, and if no provision is made for an orderly 
and organic grant of power, it will, in cases of necessity, arro- 
gate it. A liberty thus merely hedging in, would resemble 
embankments of the Mississippi without an outlet for freshets. 
No one believes that there would be sufficient time to repair 
the crevasse. This applies to all the concerns of government, and 
especially to appropriations of money. Merely denying money 
to government, or, still worse, not creating a proper organism 
for granting it, must lead either to inanity or to executive 
plundering ; but it is equally true that the strictest possible 
limitation and hedging in, by law, of the money grants, are as 
requisite for the cause of liberty as the avoidance of the error 
I have just pointed out. This subject is well treated in " The 
Federalist," 1 and the insufficiency of our ancient articles of 
confederation was one of the prominent causes which led our 
forefathers to the adoption of the federal constitution. Lord 
Nugent truly calls the power of granting or refusing supplies, 
vested in parliament, but especially in the house of commons, 
or, as he says, "the entire and independent control of parlia- 
ment over the supplies," "the stoutest buttress of the English 
constitution." 2 



1 " Federalist," No. xxx. and sequel, Concerning taxation, and other parts 
of that sage book. 

2 "Memorials of John Hampden," vol. i. p. 212, London, 1832. 



AND SELF-GOVERNMENT. 



45 



It is the Anglican rule to make but short appropriations, 
and to make appropriations for distinct purposes. We insist 
still more on this principle than the English, and justly de- 
mand that appropriations be made as distinct and specific as 
possible, and that no transfer of appropriations by the execu- 
tive take place ; that is to say, that the executive be not 
authorized to use a certain appropriation, if not wholly spent, 
partially for purposes for which another appropriated sum has 
proved to be insufficient. It is not pnly necessary for vigorous 
civil liberty that the legislature, and chiefly the popular branch 
of it, keep the purse-strings of the public treasury; but also 
that the same principle be acted upon in all minor circles of 
the vast public fabric. The money of the people must be 
under the control of the trustees of the people, and not at the 
disposal of officials unconnected with the people, or at the dis- 
posal of an irresponsible multitude, which, itself without prop- 
erty, readily countenances those mal-appropriations of money 
which we meet with in every democratic absolutism, from the 
later times of Athens to the worst-governed large cities of our 
own country. 1 

The French imperial constitution decrees, indeed, that the 
budgets of the different ministers must be voted by the deputies, 
but they must be voted each as a whole ; no amendments can 
be made either in the sums thus voted in the lump, or in any- 
thing else proposed by the government, the government alone 
having the initiative. All the deputies can do is to send back a 
bill to the government, with remarks. The French provision, 
therefore, is founded on a principle the very opposite to that 
which we consider essential regarding money appropriations. 

The history of the control over the public funds, in grant- 
ing, specifying, and spending them, may well be said to-be a 
continuous index of the growth of English liberty. It is 



1 [For the practice of short and specific supplies by the English commons, 
begun under Charles II., and since William III. an essential part of the consti- 
tution, see Hallam, iii. 159, 160; May, i. 140. The last-cited author points to 
the want of suspicion of the government on the part of the commons, growing 
out of the detailed budgets.] 



I 4 6 ON CIVIL LIBERTY 

this principle which has essentially aided in establishing self- 
government in England ; and which has made the house of 
commons the real seat of the national government as we now 
find it. Every one knows that the " supplies" are the means 
by which the English effect in a regular and easy way that 
which the Roman populus occasionally and not regularly 
effected against the senate, by a refusal to enlist in the army 
when war was at the gates of the city. 1 

The history of the British civil list, or the personal revenue 
granted to the monarch at the beginning of his reign, is also 
instructive in regard to this subject. In the middle ages the 
monarch was the chief nobleman, and had, like every other 
nobleman, his domains, from which he drew his revenue. 
Taxes were considered extraordinary gifts. As the monarch, 
however, wanted more money, either for just or unjust pur- 
poses, loans were made, which were never redeemed. Mr. 
Francis correctly observes, that it is absurd to charge William 
III. with having created a public debt, as Hume and so many 
others have done. William III., on the contrary, was the first 
monarch who treated loans really as loans, and provided either 
for their repayment or the payment of interest. 2 

As civil liberty advanced, all revenue of the monarch, in- 
dependent of the people, was more and more withdrawn from 
nim, and crown domains were more and more made public 
domains, until we see George III. giving up all extra-parlia- 
mentary revenue. The monarch was made dependent on the 
civil list exclusively. 3 



1 Chatham, when minister to the crown in 1759, and while Lord Clive was 
making his great conquests in the East, said that neither the East India Company 
nor the crown ought to have that immense revenue. If the latter had it, it would 
endanger all liberty. Chatham's Correspondence, vol. i. In the year 1858, 
however, the government of the East Indies was taken from the company and 
given to the crown. It would seem that the commons felt so secure, in the 
middle of the nineteenth century, that they did not fear to have that vast Eastern 
empire ruled over, theoretically, by the monarch, in reality, by a minister respon- 
sible to parliament. 

2 Francis, Chronicles and Characters of the Stock Exchange. 

3 [For the history of the Civil List, see May, i. chap. 4.] 



AND SELF-GOVERNMENT. 1 4; 

20. It is further necessary that the power of making war 
essentially reside with the people, and not with the executive. 
In England, it is true, the privilege of making war and con- 
cluding peace is called a royal prerogative, but, as no war can 
be carried on without the nervus rerum gerendarum, it is the 
commons who decide whether the war shall be carried on or 
not. They can grant or decline the authority of enlisting men, 
and the money to support them and to provide for the war. 
The Constitution of the United States decrees that congress 
shall have power to make war, * and an American declaration 
of war must be passed by congress, like any other law. A 
declaration of war by the United States is a law. 

Where the executive has not only the nominal but the real 
power of declaring war, we cannot speak of civil liberty or of 
self-government; for that which most essentially affects the 
people in all their relations is in that case beyond their 
control. Even with the best-cqntrived safeguards, and a 
deeply rooted tradition, it seems impossible to guard against 
occasional high-handed assumption of power by the execu- 
tive in this particular. Whatever our late Mexican war 
ultimately became in its character, there is probably now no 
person who will deny that, in its beginning, it was what is 
called a cabinet war. It was commenced by the cabinet, 
which,. after hostilities had begun, called on congress to ratify 
its measures. 

It has already been stated (paragraph 13) that a perfect 
dependence of the forces upon the civil power is an indispen- 
sable requisite and element of civil liberty. 

21. The supremacy of the law and that unstinted protection 



1 It may as well be observed here that congress means the senate and house 
of representatives. The president is not included in the term. Parliament, on 
the other hand, means commons, lords, and king. Practically speaking, the 
difference is not great; for the president has the veto power, of which he makes 
occasional use, while the King of England has not made any use of it for about 
a century. The English administration would resign before it would become 
necessary in their eyes to veto a bill. But the King of England has the 
greatest of all veto powers — he can dissolve parliament, which our executive 
cannot do. 



I4 8 ON CIVIL LIBERTY 

of the individual as well as of society, in which civil liberty 
essentially consists, require on the one hand the fullest pos- 
sible protection of the minority, and, on the other hand, the 
security of the majority that no factious minority or cabal shall 
rule over it. 

The protection of the minority leads to that great institu- 
tion, as it has been boldly but not inappropriately called — the 
opposition. A well-organized and fully protected opposition, 
in and out of the legislature — a loyal opposition, by which is 
meant a party which opposes, on principle, the administration, 
or the set of men who have, for the time being, the govern- 
ment in their hands, but does so under and within the common 
fundamental law — is so important an element of civil liberty, 
whether considered as a protecting fence or as a creative 
power, that it would be impossible here to give to the subject 
that space which its full treatment would require. I have 
attempted to do so, and to* sketch its history, in my Political 
Ethics. [Book v. chap. 3.] 

The elaboration of that which we call an opposition, is an 
honor which belongs to the English, and seems to me as great 
and as noble a contribution to the treasures of civil freedom 
as the development of the power of our supreme courts (of 
the United States and of the different states) to declare, upon 
trial of specific cases, a law passed by the legislature uncon- 
stitutional and void. They are two of the noblest acquisitions 
in the cause of liberty, order, and civilization. 

22. The majority, and through it the people at large, are 
protected by the principle that the administration is founded 
upon party principles, or, as it has been called, upon a govern- 
ment by party, if by party we mean men who agree on cer- 
tain "leading general principles in government" 1 in opposi- 
tion to others, and act in unison accordingly. If by party be 
understood a despicable union of men, to turn out a certain 
set of office-holders merely to obtain the lucrative places, and, 
when they are obtained, a union to keep them, it becomes an 



1 Burke. 



AND SELF-GOVERNMENT. 



149 



odious faction of placemen or office-hunters, the last of those 
citizens to whom the government ought to be entrusted. The 
ruinous and rapidly degrading effect of such a state of things 
is directly contrary to sound liberty, and serves as a fearful 
encouragement to those who, politically speaking, are the most 
worthless. But freedom of thought and action produces con- 
tention in all spheres, and, where great tasks are to be per- 
formed and where weighty interests are at stake, those who 
agree on the most important principles will unite and must do 
so in order to be sufficiently strong to do their work. With- 
out party administration and party action, it is impossible that 
the majority should rule, or that a vigorous opposition can rise 
to a majority and rule in turn. Liberty requires a parliament- 
ary government, and no truly parliamentary government can 
be conceived of without the principle of party administration. 
It became fully developed under George I., or we should 
rather say under Sir Robert Walpole. Under the previous 
governments mixed cabinets of whigs and tories were common, 
when court intrigues and individual royal likings and dislikes 
had necessarily often a greater effect than national views and 
interests, to which it is the object of party administration to 
give the sway. We have to deal with parties, in this place, 
only as connected with civil liberty. 

For their dangers, their affinity to faction as well as their 
existence in the arts, sciences, religion, and even in trades — in 
fact, wherever free action is allowed ; for the public inconveni- 
ence, and indeed danger, in having more than two parties ; the 
necessity that political parties should be founded upon broad, 
comprehensive, and political principles ; for the galling inso- 
lence to which parties in power frequently rise, even in coun- 
tries like ours ; and for the fact that, in England at least, there 
is a manifest disposition to treat measures and politics in gen- 
eral, as far as possible, without reference to mere party politics ; 
as well as for many other important matters connected with 
the subject of parties, I must refer to other places. 1 



x These subjects have been considered at length in the Political Ethics. The 



150 ON CIVIL LIBERTY 

23. A principle and guarantee of liberty, so acknowledged 
and common with the Anglican people that few think of its 
magnitude, yet of really organic and fundamental importance, 
is the division of government into three distinct functions, or 
rather the keeping of these functions clearly apart. 

It is, as has been mentioned, one of the greatest political 
blessings of England, that from a very early period her courts 
of justice were not occupied with " administrative business," 
for instance, the collection of taxes, and that her parliament 
became the exclusive legislature, while the parliaments of 
France united a judicial, legislative, and administrative char- 
acter. The union of these functions is absolutism, or despotism 
on the one hand, and slavery on the other, no matter in whom 
they are united, whether in one despot or in many, or in the 
multitude, as in Athens after the time of Cleon the tanner. 
The English political philosophers have pointed out long ago 1 
the necessity of keeping the three powers separate in a " con- 
stitutional" government. Those, however, who have no other 
definition of liberty than that it is equality, discard this 
division, except, indeed, so far as the mere convenience of 
transacting business would require. 

We have seen already that a distinguished French publicist, 
Mr. Girardin, declares himself for an undivided public power. 2 



reader will peruse with advantage the chapter on Party in Lord John Russell's 
Essay on the History.of the English Government and Constitution, 2d edit., 
London, 1823. 

1 For instance, Locke. Montesquieu, at a later period, is generally considered 
the political philosopher who first distinctly conceived the necessity of the divi- 
sion of power. The English practised it earliest and established it most clearly ; 
and the French have again given it up, for a time at least, ever since the revolu- 
tion of 1848, nor has it ever been properly carried out by them, their principle 
of centralization preventing it. See Pol. Ethics, book ii. c. xxiii. 

2 He has repeatedly given his views, but especially in an elaborate and bril- 
liantly written, but, according to our opinion, superficial paper on the question, 
why the republic (of 1848) came to a fall. Mr. Girardin and all the French who 
believe that liberty exists in the right of choosing the ruler, although once elected 
he be absolute, seem entirely to forget that all the generals of the monastic orders 
are elective ; that in many orders, even in those of nuns, for instance in the 
Ursuline order, the superiors are elected by universal suffrage, but that no person 



AND SELF-GOVERNMENT. 151 

Unite d'* pouvoir is the watchword of the French republicans, 
and it is the very principle with which Louis Napoleon check- 
mated them. It belongs to what may well be called Rousseau- 
ism. Rousseau is distinctly against division of 'power. 1 His 
Social Contract became the political Bible of the convention- 
men, and it has ever since kept a firm hold on the mind of a 
very large part of the French people, probably of the largest 
portion. Indeed, we may say that the two great types of 
government now existing among the civilized and striving por- 
tion of mankind are representative (or, as the French choose 
to call it, parliamentary) government, which is essentially of 
a co-operative character — it is the government of Anglican 
liberty ; and unity of power, the Gallican type. The French 
people themselves are divided according to these two types. 
Mr. Guizot may perhaps be considered as the French repre- 
sentative of the first type. A pamphlet, on the other hand, 
on government, and generally ascribed to Louis Napoleon, 
published not long before the explosion of the republic, for 
which it was evidently intended to prepare the public mind, 
advocates the unity of power in the last extreme, and as a 
truly French principle. 

It may be granted that when French publicists and his- 
torians speak with undisguised praise of the introduction of 
centralization and unity of power as one of the greatest 
blessings, they may at times mean an organized and uniform 
government, as opposed to merely specific protection in an- 
tiquity and the middle ages, where tribunes, jurats, and other 
officers were appointed to protect certain interests or classes, 
somewhat like foreign ministers or consuls of the portions of 
society, in times of peace — it is possible that they occasionally 
mean something of this sort, without being quite conscious of 



has ever claimed the possession of liberty for the monks or nuns. Indeed, their 
very vow is against it. But "republicanism" has actually been vindicated for 
the monastic orders. In the same way Rome might be considered a republic 
because the pope is elective. 

1 [Centralization is opposed (1) to division of power between functions, (2) to 
diffusion of power, or local self-government, which is treated of afterwards.] 



152 ON CIVIL LIBERTY 

the difference ; but, as matters stand, we who love Anglican 
liberty believe that what is now and emphatically called unity 
of power is unvarnished absolutism. It is indifferent who 
wields it. We insist upon the supremacy, not the absolutism, 
of the legislature. We require the harmonious union of the 
co-operative whole, but abhor the unity of power. 

What the French republicans demand in the name of the de- 
mocracy, kings insist upon in the name of divine right. Both 
loudly protest against the " division of sovereignty," which 
can only mean a clear division of power; for what in a philo- 
sophical sense can truly be called sovereignty can never be 
divided, and its division need not, therefore, be guarded 
against. Sovereignty is the self-sufficient source of all power 
from which all specific powers are derived. It can dwell, 
therefore, according to the views of freemen, with society, the 
nation only; but sovereignty is not absolutism. It is remark- 
able how all absolutists, monarchical or democratic, agree on 
the unity of power. 1 

Power, according to its inherent nature, goes on increasing 
until checked. The reason is not that power is necessarily 
of an evil tendency, but because without it, it would not be 
power. 2 Montesquieu says : " It is a lasting experience that 
every man who has power is brought to the abuse of it. He 
goes on until he finds its limits." 3 And it is so with "every 



1 Innumerable official instances might be cited. The King of Prussia, when, in 
May, 1847, he delivered his first throne speech to the united committees of the 
provincial estates, which were to serve as a substitute for the expected estates 
general, "appealed in advance to his people" against everything we are accus- 
tomed to call constitutional. " My people does not want a participation of repre- 
sentatives in ruling, . . . nor the division of sovereignty, nor the breaking up 
of the plenitude of royal power," etc. General Bonaparte wrote to the Direc- 
tory, May 14, 1796 : " One bad general is even better than two good ones. War 
is like government, it is a matter of tact" — words which Mr. Girardin quotes with 
approval, and as an authority for his theory of the best government consisting in 
a succession of perfectly absolute single rulers to be appointed, and at pleasure 
recalled by universal suffrage. 

2 This I have endeavored plainly to show in the Political Ethics. 

3 Esprit des Loix, xi. 5. 



AND SELF-GOVERNMENT. 



153 



man," because it lies in the very nature of power itself. The 
reader is invited to reperuse "The Federalist" on this weighty 
subject. 1 

The unity of power doubtless dazzles, and thus is the more 
dangerous. The French ought to listen to their own great 
countryman. He says : "A despotic government (and all unity 
of power is despotic) strikes the eye, (saute pour ainsi dire aux 
yeux;) it is uniform throughout: as it requires nothing but 
passions to establish it, all sorts of people are sufficiently good 
for it." 2 

Our own Webster, in his speech on the presidential protest, 
delivered the following admirable passage on the subject of 
which we treat, and on liberty in general — a passage which I 
give entire, in spite of its length, because I cannot find the 
courage to mutilate it. I have tried to select some sentences, 
but it seemed to me like attempting to break off some limbs 
of a master-work of sculpture which has happily come down 
to us entire. 3 

Mr. Webster said: "The first object of a free people is the 
preservation of their liberty, and liberty is only to be pre- 
served by maintaining constitutional restraints and just divi- 
sions of political power. Nothing is more deceptive or more 



1 Mr. Madison's paper on The Meaning of the Maxim, which requires a Sepa- 
ration of the Departments of Power, examined and ascertained. Federalist, No. 
xlvii. and sequ. 

2 Esprit des Loix, book v. c. 14. 

3 The speech was delivered in the Senate of the United States on the 7th of 
May, 1834. If I might place myself by the side of these men, I would refer the 
reader to the Political Ethics, where I stated that despotism is simple and coarse. 
It is like a block of granite, and may last in its unchanging coarseness a long 
time ; but liberty is organic, with all the delicate vitality of organic bodies, with 
development, growth, and expansion. Despotism may have accretion, but liberty 
widens by its own vital power, and gains in intensity as it expands. The long 
duration of some despotisms decides nothing. Longevity of states is indeed a 
requisite of modern civilization, but if we must choose, who would not prefer a 
few hundred years of Roman liberty to the thousands "of Chinese dreary manda- 
rinism and despotism ? Besides, we must not forget that a shoe once trodden 
down to a slipper will always serve longer in its slipshod capacity than it did as 
.a shoe. 



154 ON CIVIL LIBERTY 

dangerous than the pretence of a desire to simplify govern- 
ment. 

"The simplest governments are despotisms; the next sim- 
plest, limited monarchies; but all republics, all governments of 
law, must impose numerous limitations and qualifications of 
authority, and give many positive and many qualified rights. 
In other words, they must be subject to rule and regulation. 
This is the very essence of free political institutions. 

"The spirit of liberty is, indeed, a bold and fearless spirit; 
but it is also a sharp-sighted spirit ; it is a cautious, saga- 
cious, discriminating, far-seeing intelligence; it is jealous of 
encroachment, jealous of power, jealous of man. It demands 
checks ; it seeks for guards ; it insists on securities ; it en- 
trenches itself behind strong defences, and fortifies itself with 
all possible care against the assaults of ambition and passion. 
It does not trust the amiable weaknesses of human nature, and 
therefore it will not permit power to overstep its prescribed 
limits, though benevolence, good intent, and patriotic purpose 
come along with it. Neither does it satisfy itself with flashy 
and temporary resistance to its legal authority. Far other- 
wise. It seeks for duration and permanence. It looks before 
and after ; and, building on the experience of ages which are 
past, it labors diligently for the benefit of ages to come. 
This is the nature of constitutional liberty; and this is our 
liberty, if we will rightly understand and preserve it. Every 
free government is necessarily complicated, because all such 
governments establish restraints, as well on the power of 
government itself as on that of individuals. If we will 
abolish the distinction of branches, and have but one branch ; 
if we will abolish jury trials, and leave all to the judge; if we 
will then ordain that the legislator shall himself be that judge; 
and if we place the executive power in the same hands, we 
may readily simplify government. We may easily bring it to 
the simplest of all possible forms, a pure despotism. But a 
separation of departments, so far as practicable, and the pres- 
ervation of clear lines of division between them, is the funda- 
mental idea in the creation of all our constitutions ; and, 



AND SELF-GOVERNMENT. 155 

doubtless, the continuance of regulated liberty depends on 
maintaining these boundaries." * 

Unity of power, if sought for in wide-spread democracy, 
must always lead to monarchical absolutism. Virtually it is 
such ; for it is indifferent what the appearance or name may 
be, the democracy is not a unit in reality ; yet actual absolut- 
ism existing, it must be wielded by one man. All absolutism 
is therefore essentially a one-man government. The ruler may 
not immediately take the crown; the pear may not yet be 
ripe, as Napoleon said to Sieyes ; but it soon ripens, and then 
the avowed absolute ruler has far more power than the king 
whose absolute power is traditional, because the tradition itself 
brings along with it some limitations by popular opinion. Of 
all absolute monarchs, however, it is true that " it is the vice 
of a pure (absolute) monarchy to raise the power so high and 
to surround it with so much grandeur that the head is turned 
of him who possesses it, and that those who are beneath him 
scarcely dare to look at him. The sovereign believes himself 
a god, the people fall into idolatry. People may then write on 
the duties of kings arid the rights of subjects ; they may even 
constantly preach upon them, but the situations have greater 
power than the words, and when the inequality is immense, the 
one easily forgets his duties, the others their rights." 2 Change 



1 Page 122, vol. iv. of the Works of Daniel Webster. I have not transcribed 
this long passage without the permission of those who have the right to give it. 

To my mind it appears the fnost Demosthenian passage of that orator. Per- 
haps I am biased, because the extract maintains what I have always asserted on 
the nature of liberty, and what has shown itself with such remarkable clear- 
ness and undraped nakedness in the late French affairs. 

2 Guizot, Essais sur l'Histoire de France, p. 359. 

General Rapp, first aid of Napoleon, gives a good picture of the false position 
of an absolute monarch, in his Memoirs, Paris, 1832, ch. 2. He says that 
"whenever Napoleon was angry, his confidants, far from appeasing him, in- 
creased his anger by their representations. 'Your majesty is right,' they would 
say : < such a person has merited to be shot, or disgraced, or discarded. ... I 
have long known him to be your enemy. Examples are necessary ; they are 
necessary for the maintenance of tranquillity.' When it was required to levy 
contributions from the enemy's country and Napoleon would perhaps ask for 
twenty thousand, he was advised to demand ten more. If it was the question to 



156 ON CIVIL LIBERTY 

the terms, and nearly every word applies to absolute democra- 
cies with equal truth. Aristotle says that extreme democracy 
(what we would call democratic absolutism) has the character 
of the tyrannis (monarchical absolutism.) 1 This is true, yet 
we must add these modifications : The power of the absolute 
monarch, though centred in one man, according to theory is 
lent to him by those over whom he rules ; he may be brought 
to an account ; but the power of an absolute democracy is fear- 
ful reality, with which there is no reckoning. It strikes, and 
the strikers vanish. Where shall they be impeached ? Even 
he who led them is shielded by the inorganic multitude that 
followed him. It is felt to be heroic to oppose the absolute 
monarch ; it is considered unpatriotic or treasonable to oppose 
the absolute democracy, or those people who call themselves 
the people. 

Absolute monarchs, indeed, often allow free words. The 
philosopher Kant uttered remarkable political sentiments under 
Frederic the Great, and Montesquieu published his Spirit of 
Laws under the auspices of Madame de Tencin, the chanoiness 
mistress of the Duke of Orleans, regent of France, and succes- 
sively mistress of many others. Montesquieu was favored by 



levy two hundred thousand men, he was persuaded to ask for three hundred, 
thousand ; in liquidating a debt which was indisputable, they would insinuate 
doubts on its legitimacy, and would often cause him to reduce to a half, or a 
third, and sometimes entirely, the amount of the demand. If he spoke of making 
war, they would applaud the noble resolution : war alone would enrich France; 
it was necessary to astonish the world in a manner suitable to the power of the 
great nation. Thus it was that in provoking and encouraging expectations and 
uncertain enterprises he was precipitated into continual wars. Thus it is that 
they succeeded in giving to his reign a character of violence which did not belong 
to him. His disposition and habits were altogether good-natured. Never a man 
was more inclined to indulgence and more awake to the voice of humanity. I 
could cite thousands of examples." 

Whether Napoleon was good-natured or not need not be discussed here, nor 
is it important to state that he was not so weak as represented by Rapp; but it is 
instructive to see how a man like Rapp, an uncompromising absolutist, unawares 
lays bare his own opinion of the character of an absolute monarch, because he 
is absolute. 

1 Pol., v. 9, \ 6; vi. 2, 11 9, 12. 



■ AND SELF-GOVERNMENT. 157 

these persons ; for nothing is more common than that sprightly 
people have a sentimental love for the theory of liberty. But 
neither Kant nor Montesquieu would have been suffered to 
utter his sentiments had there been any fear whatever that 
they might pass into reality. There is an immense difference 
between admiring liberty as a philosophical speculation, lov- 
ing her like an imaginary beauty by sonnet and madrigal, 
and uniting with her in real wedlock for better and for worse. 
Liberty is the loved wife and honored companion, through 
this earthly life, of every true American and Englishman, and 
no mistress for sentimental sport or the gratification of spas- 
modic passion, nor is she for them a misty nymph with whom 
a mortal falls in consuming love, nor is she the antiquated 
portrait of an ancestor, looked upon with respect, perhaps even 
with factitious reverence, but without life-imparting actuality. 1 



1 Since the foregoing chapter was originally written, history has furnished us 
with many additional and impressive illustrations of some of its contents. 
Numerous French writers, anxious to vindicate for France the leadership in the 
race of civilization, yet sadly aware that liberty exists no more in France, have 
declared that the essence of liberty exists simply in universal suffrage, or, if they 
abandon even the name of liberty, that the height of political civilization con- 
sists in two things — universal suffrage and the code Napoleon, with the proclama- 
tion of which it has been stoutly maintained a French army would find the 
conquest of England and the regeneration of Italy an easy matter. Once the 
principle of universal suffrage established, the French statesmen of the imperial 
school demand that everything flowing from it, by what they term severe or 
uncompromising logic, must be accepted. This peculiar demand of severe logic 
is, nevertheless, wholly illogical, for politics are a means to obtain a high object, 
and the application to certain given circumstances is of paramount importance. 
We do not build houses, cure or sustain our bodies, by logic ; and a bill of rights 
is infinitely more important and intrinsically true than the most symmetrically 
logical rights of men. The " severe logic" leads, moreover, different men to 
entirely different results, as, for instance, Mr. Louis Blanc on the one hand, and 
the imperial absolutists on the other; and, if universal suffrage, without guaran- 
teeing institutions, is the only principle of importance, the question presents itself 
immediately, Why appeal to it on rare occasions only, perhaps only once in order 
to transfer power, and what does universal suffrage mean if not the ascertaining 
of the opinion of the majority? If this be the object, then we must further ask, 
Why is discussion necessary to form the opinion suppressed, and how could Mr. 
de Montalembert be charged with, and tried for, having attacked the principle of 



I5 8 ON CIVIL LIBERTY 

universal suffrage, in a pamphlet the whole object of which could not be any- 
thing else than influencing those who, under universal suffrage, have to give 
their votes? This is not " severe logic." 

If much has happened and been w r ritten since the original penning of this 
chapter to illustrate the utter falsity of universal suffrage, naked and pure, we 
must not omit to mention, on the other hand, works of merit which have been 
written in a very opposite train of thought, by men of great mark, of whom 
Mr. de Tocqueville deserves particular mention on account of his Ancien 
Regime. 



AND SELF-GOVERNMENT. 159 



CHAPTER XV. 

RESPONSIBLE MINISTERS. — COURTS DECLARING LAWS UNCONSTI- 
TUTIONAL. REPRESENTATIVE GOVERNMENT. 

24. It is not only necessary that every officer remain indi- 
vidually answerable for his acts, but it is equally important that 
no act be done for which some one is not responsible. This 
applies in particular, so far as liberty is to be protected, to that 
branch of government which directs the military. It is impor- 
tant, therefore, that no decree of government go forth without 
the name of a responsible person; and that the officers, or single 
acts of theirs, shall be tried, when trial becomes necessary, by 
regular action at law, or by impeachment; and that no positive 
order by the supreme executive, even though this be a king, as 
in England, be allowed as a plea for impunity. A long time 
elapsed before this principle came clearly to be established in 
England. Charles I. reproved the commons for proffering their 
loyalty to his own person, while they opposed his ministers, and 
measures which he had personally ordered. England in this, as 
in almost all else that relates to constitutional liberty, had the 
start of the continent by two hundred years and more. 1 The 



1 [The importance of the power of impeachment for obeying a king's unlawful 
commands would have been practically destroyed in England, if either a pardon 
had been pleadable against impeachment, or the dissolution of a house of 
commons had put an end to proceedings in such sort that a new house must 
commence them de novo. The earl of Danby had been saved for the time by 
Charles II., by means of a dissolution of the impeaching parliament, and when a 
new parliament revived the proceedings, pleaded a pardon in bar of the prose- 
cution of the case. (1679.) It was decided in the act of settlement of 13 Wm. III. 
that " no pardon under the great seal of England be pleadable to an impeach- 
ment of the commons in parliament." The question whether an impeachment 
could survive a dissolution was decided, during the impeachment of Warren 
Hastings, by very large majorities of both houses in the affirmative. (1791.) 



l6o ON CIVIL LIBERTY 

same complaints were heard on the continent of Europe when 
lately attempts were made to establish liberty in monarchies ; 
and more will be heard when the time of new attempts shall 
have arrived. Responsible ministers, and a cabinet dependent 
upon a parliamentary majority, were the objects of peculiar 
distaste to the present emperor of the French, as they have 
been to all absolute monarchs. His own proclamations dis- 
tinctly express it, and his newspapers continue to decry the 
servile position of government when ministers are " in the ser- 
vice of a house of representatives," 1 which means dependent 
on a parliamentary majority. 

In unfree countries, the principle prevails that complaints 
against the act of an officer, relating to his public duty, must 
be laid before his own superiors. An overcharge of duty on 
imported goods cannot there be tried before a common court, 
as is the case with us. 

25. As a general rule, it may be said that the principle 



After sentence on trial by impeachment, the king can pardon ; and, in fact, the 
house of lords, in 1715, when six peers, involved in the rebellion of that year, 
had been by this process convicted, begged the king to exercise this prerogative, 
which he did by pardoning three of the number. Hallam, ii. 555-570. Thus a 
king can save his minister from the results of a legal sentence by impeachment, 
but not until he stands convicted before the country, and suffers, it may be, a 
lifelong loss of reputation.] 

1 It is sufficiently remarkable to be mentioned here, that Napoleon III., when 
the sanguinary coup d" 1 etat had been perpetrated, supported his demand of a 
cabinet exclusively dependent upon the chief of the state, by the example of the 
American president, not seeing or not mentioning that congress has a controlling 
power. 

The following extract of a letter, written by Lord Liverpool to Lord Castle- 
reagh, (October 23, 1818,) and taken from Correspondence, Despatches, and 
other Papers of Viscount Castlereagh, second Marquis of Londonderry, 12 vols., 
London, 1853, is interesting, if we consider how thorough a tory minister Lord 
Liverpool was : 

" Bathurst's despatch and letter of Tuesday, and my letter of to-day, will put 
you entirely in possession of our sentiments upon the present state of the nego- 
tiations. The Russians must be made to feel that we have a parliament and a 
public to which we are responsible, and that we cannot permit ourselves to be 
drawn into views of policy which are wholly incompatible with the spirit of our 
government. 

" Ever sincerely yours, Liverpool." 



AND SELF-GOVERNMENT. 161 

prevails in Anglican liberty, that the executive may do that 
which is positively allowed either by the fundamental or other 
law, and not all that which is not prohibited. The royal pre- 
rogatives of the English crown doubtless made the evolution 
of this principle difficult, and may occasionally make clear 
action upon it still so ; but the modern development of liberty 
has unquestionably tended more and more distinctly to estab- 
lish the principle that for everything the executive does there 
must be the warrant of the law. The principle is of high im- 
portance, and it needs hardly to be added that it forms one of 
the prominent elements of American liberty. Our presidents, 
indeed, have done that for which many citizens believed they 
had no warrant in law, for instance, when General Jackson 
removed the public deposits from the bank of the United 
States ; but the doubt consisted in the question whether the 
law warranted the measure or not. It was not claimed that 
he could do it because it was nowhere prohibited. The Con- 
stitution of the United States declares that " the powers not 
delegated to the United States by the constitution, nor pro- 
hibited by it to the states, are reserved to the states, respect- 
ively, or to the people ;" and the principle which I have 
mentioned may be considered as involved in it ; but in the 
different states, where the legislature certainly has the right, 
as a general rule, to do all that seems necessary for the com- 
mon welfare and is not specifically prohibited, 1 the mentioned 
principle prevails regarding the executive. 2 



1 [Such specific checks on legislative power are coming more and more into 
use. The. people are beginning to distrust the legislatures, as they formerly did 
the executives.] 

2 I have already mentioned the judgment given by the French court, with refer- 
ence to the opening of letters by the police in order to find out the traces of 
offences. I now give an extract, and shall italicize those passages which bear 
upon the subject above : 

" Considering that if, by the terms of existing legislation, and particularly by 
art. 187 of the penal code, functionaries and agents of the government, and of 
the post-office administration, are forbidden either to suppress or to open letters 
confided to the said administration, this disposition cannot reach the prefect of 
police, acting by virtue of powers conferred upon him by art. 10 of the Code of 
Criminal Instruction : 



1 62 ON CIVIL LIBERTY 

26. The supremacy of the law requires that where enacted 
constitutions 1 form the fundamental law there be some autho- 



" Considering that the law, in giving to him the mission to investigate offences, 
to collect evidence in support of them, and to hand their authors over to the tri- 
bunals charged with punishing them, has not limited the means placed at his dis- 
position for attaining that end .♦* 

" That, in fact, the right of perquisition in aid of judicial instructions is 
solemnly affirmed by numerous legal dispositions, and that it is of common law 
in this matter : 

" That the seizure in question was made in order to follow the trace of an 
offence; that it resulted in the discovery of useful and important facts ; that, 
finally, the authors of the said letters have been prosecuted in a court of justice : 

" Considering, moreover, that the court is not called upon to inquire into the 
origin of documents submitted to this appreciation ; that its mission is merely to 
establish their authenticity or their sincerity ; that, in fact, the letters in question 
are not denied by their authors : 

" For these reasons the letters are declared admissible as evidence," etc. 

It is pleasing to read by the side of this remarkable judgment so simple a pas- 
sage as the following, which was contained in an English paper at the same time 
that the French judgment was given. It relates to a London police regulation 
concerning cabmen : 

" Now, we have no wish to palliate the bad conduct of a class who at least fur- 
nish amusing topics to contemporaries. By all means let the evils be remedied ; 
but let the remedy come within the limits of law. It will be an evil day for 
England when irresponsible legislation and police law, even for cabmen, are 
recognized and applauded by a certain public because in a given example it 
happens to be convenient to them. If the ordinary law is not sufficient, let it be 
reformed; but do not leave the making of penal laws to the police, and the 
execution of those laws to the correctional tribunal of the same authority." — 
Spectator, April 2, 1853. 

1 They are generally called written constitutions; but it is evident that the 
essential distinction of constitutions, derived from their origin, is not whether 
they are written or unwritten, which is incidental, but whether they are enacted 
or cumulative. The English constitution — that is, the aggregate of those laws and 
rules which are considered of fundamental importance, and essential in giving to 
the state and its government those features which characterize them, or those laws 
and institutions which give to England her peculiar political organic being — consists 
in cumulated usages and branches of the common law, in decisions of fundamental 
importance, in self-grown and in enacted institutions, in compacts, and in statutes 
embodying principles of political magnitude. From these the Americans have 



* Does not this argument from the absence of restriction remind the reader of that 
Baron Viereck, who consented to his daughter's marrying the King of Denmark, the 
undivorced queen living, and who replied to an expostulating friend that he could find 
no passage in the Bible prohibiting kings of Denmark from having two wives? 



AND SELF-GOVERNMENT. ^3 

rity which can pronounce whether the legislature itself has or 
has not transgressed it in the passing of some law, or whether 
a specific law conflicts with the superior law, the constitution. 
If a separate body of men were established to pronounce upon 
the constitutionality of a law, nothing would be gained. It 
would be as much the creature of the constitution as the legis- 
lature, and might err as much as the latter. Quis custodiet 
custodes ? Tribunes or ephori ? They are as apt to transgress 
their powers as other mortals. But there exists a body of 
men in all well-organized polities, who, in the regular course 
of business assigned to them, must decide upon clashing in- 
terests, and do so exclusively by the force of reason, according 
to law, without the power of armies, the weight of patronage 
or imposing pomp, and who, moreover, do not decide upon 
principles in the abstract, but upon practical cases which 
involve them — the middle men between the pure philosophers 
and the pure men of government. These are the judges — 
courts of law. 

When laws conflict in actual cases, they must decide which 
is the superior law and which must yield ; and as we have seen 
that according to our principles every officer remains answer- 
able for what he officially does, a citizen, believing that the 
law he enforces is incompatible with the superior law, the con- 
stitution, simply sues the officer before the proper court as 



extracted what has appeared important or applicable to our circumstances ; we 
have added, expanded, and systematized, and then enacted this aggregate as a 
whole, calling it a constitution — enacted, not by the legislature, which is a crea- 
ture of this very constitution, but by the people. Whether the constitution is 
written, printed, carved in stone, or remembered only, as laws were of old, is 
not the distinctive feature. It is the positive enactment of the whole at one time, 
and by distinct authority, which marks the difference between the origin of our 
constitutions and those of England or ancient Rome. Although the term written 
constitution does not express the distinctive principle, it was nevertheless natural 
that it should have been adopted, for it is analogous to the term lex scripta, by 
which the enacted or statute law is distinguished from the unenacted, grown, and 
cumulative common law. [The distinguishing feature of the English constitu- 
tion is that the people have no direct voice in saying what it shall be ; the par- 
liament has theoretically an uncontrolled power of adding to or taking away from 
the fundamental laws.] 



164 ON CIVIL LIBERTY 

having unlawfully aggrieved him in the particular case. The 
court, bound to do justice to every one, is bound also to decide 
this case as a simple case of conflicting laws. The court does 
not decide directly upon the doings of the legislature. It 
simply decides, for the case in hand, whether there actually 
are conflicting laws, and, if so, which is the higher law that 
demands obedience when both may not be obeyed at the same 
time. As, however, this decision becomes the leading decision 
for all future cases of the same import, until, indeed, proper 
and legitimate authority shall reverse it, the question of con- 
stitutionality is virtually decided, and it is decided in a natural, 
easy, legitimate, and safe manner, according to the principle 
of the supremacy of the law and the independence of justice. 
It is one of the most interesting and important evolutions of 
the government of law, and one of the greatest protections of 
the citizen. It may well be called a very jewel of Anglican 
liberty, one of the best fruits of our political civilization. 1 

27. Of all the guarantees of liberty there is none more im- 
portant, and none which in its ample and manifold develop- 
ment is more peculiarly Anglican, than the representative 
government. Every one who possesses a slight acquaintance 
with history knows that a government by assembled estates 
was common to all nations arising out of the conquests of the 
Teutonic race ; but the members of the estates were deputies 
or attorneys sent with specific powers of attorney to remedy 
specific grievances. They became nowhere, out of England 
and her colonies, general representatives — that is, representa- 
tives for the state at large, and with the general power of 
legislation. This constitutes one of the most essential differ- 
ences between the deputative medieval estates and the modern 
representative legislatures — a government prized by us as one 
of the highest political blessings, and sneered at by the enemies 






1 The ancient justicia of Aragon had the power of declaring laws unlawful, or 
unconstitutional, as we call it, against the king and estates, but it was done with- 
out the trial of a specific case and specific persons. He was therefore simply in 
these cases above Icing and estates, that is, king himself; and it became necessary 
in course of time to suppress this feature. See Pol. Ethics, vol. ii. p. 281. 



AND SELF-GOVERNMENT. ^5 

of liberty on the continent, at this moment, as " the unwieldy- 
parliamentary government." I have endeavored thoroughly 
to treat of this important difference ; of the fact that the repre- 
sentative is not a substitute for something which would be 
better were it practicable, but has its own substantive value ; 
of political instruction and mandates to the representative, 
and of the duties of the representative, in the Political Ethics, 
to which I must necessarily refer. the reader. 

With reference to the great subject of civil liberty, and as 
one of the main guarantees of freedom, the representative 
government has its value as an institution by which public 
opinion organically passes over into public will, that is law; 
as one of the chief bars against absolutism of the executive 
on the one, and of the masses on the other hand ; as the only 
contrivance by which it is possible to induce at the same time 
an essentially popular government and the supremacy of the 
law, or the union of liberty and order ; as an invaluable high 
school to teach the handling and the protection and to instil 
the love of liberty ; as the organism by which the average 
justice, on which all fair laws must be based, can be ascer- 
tained; as that sun which throws the rays of publicity on the 
whole government with a more penetrating light the more 
perfect it becomes ; and as one of the most efficacious pre- 
ventives of the growth of centralization and a bureaucratic 1 



1 The term bureaucracy is called by many barbarous, nor has it, so far as I 
know, been introduced into dictionaries of great authority. Be it so ; but, while 
we have innumerable words compounded of elements which belong to different 
languages, a term for that distinct idea which is designated by the word Bureau- 
cracy has become indispensable in the progress of political science, because the 
thing which must be named has distinctly developed itself in the progress of 
centralization combined with writing. In spite, therefore, of the want of lexical 
authority, it is almost universally used ; for necessity presses. I am under this 
necessity, and shall use it until a better and more acceptable term be proposed. 
Mandarinism would not be preferable. Mandarinism would express indeed a 
government by mandarins, by officials, but it would not designate the character- 
istics which it is intended to point out by the term bureaucracy, namely, a 
government carried on not only by a hierarchy of officials, but also by scribbling 
bureaus. All bureaucracies must be mandarinisms, I take it; but every man- 
darinism need not be a bureaucracy. I observe that the French, from whom 



1 66 ON CIVIL LIBERTY 

government — as that institution without which no clear di- 
vision of the functions of government can exist. 

Before we consider the most prominent points of a repre- 
sentative government, so far as it is a guarantee of liberty, it 
may be proper to revert to two subjects just mentioned. 

There was a time when, it seems, it was universally believed, 
and many persons believe still, that a representative govern- 
ment is indeed a very acceptable substitute, yet only a substi- 
tute, for a state of things which would be the perfect one, but 
which it is physically impossible to obtain at present, namely, 
the meeting of the people themselves, instead of an assembly 
of their representatives. A secondary value only is thus 
allowed to the representative system. This is a grave error. 
Even were it physically or locally possible to assemble the 
entire American people and rule by the Athenian pebble or 
by cheirotonia, (the show of hands,) we must still cling to the 
representative system as a substantive institution. The market 
government belongs to antiquity — the period of city-states — 
not to our period of national states ; and national states have 
not only a meaning relating to physical extent of country. 

It has been observed that the period of nationalization of 
tribes toward the close of the middle ages was one of the most 
important in the progress of civilization and modern political 
development, as a period of medieval disintegration and di- 
vision would be the necessary effect of denationalization. Rome 
perished of a political bankruptcy, because the ancient city- 
state was incompatible with an extensive empire. A represent- 
ative government could alone have saved it ; for its recollec- 
tions and forms of liberty prevented a full-blown centralization, 
the only other form which could have given it a Russian 
stability. Constantine, indeed, established a centralized court 
government ; but it was then too late. The decree had gone 
forth that the vessel should part amidst the breakers. 



indeed the term has been received, freely use it, even in their best writings. It 
is to be regretted that we Americans frequently use the French term Bureau for 
the old term Board. There are different associations of ideas connected with 
each of these words. 



AND SELF-GOVERNMENT. 1 67 

The market democracy is irreconcilable with liberty as we 
love it. It is absolutism which exists wherever power, un- 
mitigated, undivided, and unchecked, is in the hands of any 
one or any body of men. It is the opposite of liberty. The 
people, which means nothing more than an aggregate of men, 
require fundamental laws of restraint, as much as each com- 
ponent individual does. Unless we divide the power into two 
parts — into the electing power, which periodically appoints 
and recalls, and into the power of elected trustees appointed 
to legislate, and who, as trustees, are limited in their power- 
absolutism is unavoidable. Absolutism is the negation of pro- 
tection ; protection in its highest sense is an essential element 
of liberty. 1 It is the trusteeship that gives so high a value to 
the representative government. When the Athenians, trying 
the unfortunate generals after the battle of Arginusae, were re- 
minded that they acted in direct contradiction to the laws, they 
exclaimed that they were the people ; they made the laws, 
why should they not have the privilege of disregarding them ? 2 

Every one feels his responsibility far more distinctly as 
trustee than otherwise. Let a man in an excited crowd be 
suddenly singled out and made a member of a committee to 
reflect and resolve for that crowd, and he will feel the differ- 
ence in an instant. How easy it would be to receive the most 
lavish and most dangerous money grants from an undivided 
and absolute multitude ! Is it necessary to remind the reader 



1 To refer to books on such a subject is very difficult ; for it almost compre- 
hends the whole history of modern liberty. 

1 have treated on many points connected with the representative system, in 
the Political Ethics. The reader will peruse with interest M. Guizot's Histoire 
des Origines du Gouvernement representatif en Europe, Paris, 1851. It is in- 
teresting to learn the views of a Frenchman of such celebrity on a subject of 
vital interest to us. Regarding the deputative principle, the Histoire de la For- 
mation et des Progres du Tiers-Etat, by Augustin Thierry, Paris, 1853, is in- 
structive. I am sorry that I have not been able to read Mr. George Harris's 
True Theory of Representation in a State, London, 1852. 

2 [Xen., Hellen., i. cap. 7, § 12, comp. 15. It ought, however, to be remarked 
that the Athenians checked the action of the ecclesia by requiring previous action 
of the senate, (probonleumata,) and by having laws emanate, in the first instance, 
not from the ecclesia proper, but from a large committee of the people.] 



1 68 ON CIVIL LIBERTY 

that liberty has been lost quite as often from false gratitude 
toward a personally popular man as from any other cause ? 
Trustees, carefully looking around them, and conscious that 
they have to give an account of themselves, are not so easily 
swayed by ravishing gratitude. The trusteeship in the repre- 
sentative government is the only means yet discovered to 
temper the rashness of the democracy and to overcome the 
* obstinacy of monarchs. 

How necessary for modern liberty a national 1 representa- 
tive government is — a representative system comprehending 
the whole state, and throwing liberty over it broadcast — will 
appear at once, if we remember that local self-government 
exists in many Asiatic countries, where, however, there is no 
union of these many insulated self-governments, and no state 
self-government, and therefore no liberty. We shall also pres- 
ently see that where there is only a national representative 
government without local self-government, there is no liberty 
as we understand it. 

Nor must we forget two facts, which furnish us with an im- 
portant lesson on this subject. Wherever estates or other 
bodies have existed, no matter how great their privileges were 
or how zealously they defended their liberties, civil liberty has 
not been firmly established ; on the contrary, it has been lost 
in the course of time, unless the estates have become united 
into some national or state representative system. Where 
are the liberties of Aragon, and where is the freedom of the 
many Germanic polities ? It was one of the greatest political 
blessings of England that favorable circumstances promoted 



1 I take here the term national in the sense of relating to an entire society 
spread over tl e territory of an extensive state, and as contradistinguished from 
what belongs to a city-state, or from the system of the middle ages, which was 
deputative, on the one hand, (see my Political Ethics on Representative System,) 
and from a system of juxtaposition rather than of pervading organization, like the 
Chinese language compared to our grammatical languages. In this sense, then, 
the government of Virginia or New York would be national, although we use the 
word in America as synonymous with federal. It were well if we could adopt 
a distinct term for national in the first sense. See the note at the end of this 
chapter. 



AND SELF-GOVERNMENT. 1 69 

an early national fusion of the estates into two houses. On 
the other hand, we find that those governments which can no 
longer resist the demand of liberty by the people, yet are bent 
on yielding as little as possible, always have tried as long as 
was feasible to grant provincial estates only. Some monarchs 
of this century have shown a real horror of national representa- 
tion, and would rather have periled their crown than granted 
it; yet some of these monarchs have readily granted an 
urban self-government of considerable extent. Their minis- 
ters and servants have frequently gone so far as to extol local 
self-government and to proclaim the idea that liberty consists 
far more in the "administration" being left to the people, 
than in any general representative government. In doing so, 
they pointed to countries in which the latter, existing alone, 
had brought no real liberty. Asia, as was before stated, fur- 
nishes us with innumerable instances of local self-government, 
which are there neither a source nor a test of liberty. 1 True 
liberty stands in need of both, and of a bona fide representa- 
tive government largely and minutely carried out. 2 



1 A curious picture of Asiatic local self-government, without any liberty, has 
lately been given to the public, in Lieutenant-Colonel C. G. Dixon's Sketch of 
Maiwara, giving a Brief Account of the Origin and Habits of the Mairs, etc., 
London, 1 85 1. 

2 National representation is closely connected with the idea of country, in- 
dispensable for high modern civilization. Nations and Countries appear to me 
so much elements of modern civilization and of modern liberty that I may be per- 
mitted to give an extract relating to this topic, from my Inaugural Speech in 1858 : 

" Our government is a feder 1 union. We loyally adhere to it and turn our 
faces from centralization, however brilliant, for a time, the lustre of its focus may 
appear, however imposingly centred power, that saps self-government, may hide 
for a day the inherent weakness of military concentrated polities. But truths are 
truths. It is a truth that modern civilization stands in need of entire countries; 
and it is a truth that every government, as indeed eveiy institution whatever, is, 
by its nature, exposed to the danger of gradually increased and, at last, excessive 
action of its vital principle. One-sidedness is a universal effect of man's state 
of sin. Confederacies are exposed to the danger of sej unction, as unitary govern- 
ments are exposed to absorbing central power — centrifugal power in the one 
case, centripetal power in the other. That illustrious predecessor of ours, from 
whom we borrowed our very name, the United States of the Netherlands, ailed 
long with the paralyzing poison of sejunction in her limbs, and was brought to 
an early grave by it, after having added to the stock of humanity the worshipful 



I/o ON CIVIL LIBERTY 

names of William of Orange, De Witt, Grotius, De Ruyter, and William III.* 
There is no German among you that does not sadly remember that his country, 
too, furnishes us with bitter commentaries on this truth ; and we are not exempt 
from the dangers common to mortals. Yet, as was indicated just now, the patria 
of us moderns ought to consist in a wide land covered by a nation, and not in a 
city or a little colony. Mankind have outgrown the ancient city-state. Coun- 
tries are the orchards and the broad acres where modern civilization gathers her 
grain and nutritious fruits. The narrow garden-beds of antiquity suffice for our 
widened humanity no more than the short existence of ancient states. Moderns 
stand in need of nations and of national longevity, for their literatures and law, 
their industry, liberty, and patriotism ; we want countries to work and write and 
glow for, to live and to die for. The sphere of humanity has steadily widened, and 
nations alone can nowadays acquire the membership of that great common- 
wealth of our race which extends over Europe and America. Has it ever been 
sufficiently impressed on our minds how slender the threads are that unite us in 
a mere political system of states, if we are not tied together by the far stronger 
cords of those feelings which arise from the consciousness of having a country to 
cling to and to pray for, and unimpeded land and water roads to move on ? 

" Should we, then, not avail ourselves of so well proved a cultural means of fos- 
tering and promoting a generous nationality, as a comprehensive university is 
known to be ? Shall we never have this noble pledge of our nationality ? All 
Athens, the choicest city-state of antiquity, may well be said to have been one 
great university, where masters daily met with masters; and shall we not have 
even one for our whole empire, which does not extend from bay to bay like little 
Attica, but from sea to sea, and is destined one day to link ancient Europe to 
still older Asia, and thus to help completing the zone of civilization around the 
globe ? All that has been said of countries and nations and a national university 
would retain its full force even if the threatened cleaving of this broad land should 
come upon us. But let me not enter on that topic of lowering political reality, 
however near to every citizen's heart, when I am bidden by you to discourse on 
political philosophy, and it is meet for me*not to leave the sphere of inaugural 
generalities." 

- : ' Every historian knows that William of Orange, the founder of the Netherlands' 
republic, had much at heart to induce the cities of the new union to admit representa- 
tives of the country ; but the "sovereign" cities would allow no representatives unless 
noblemen to the farmers and land-owners, who, nevertheless, were taking their full 
share in the longest and most sanguinary struggle for independence and liberty ; but 
the following detail, probably, is not known to many. The estates of Holland and 
West Friesland were displeased with the public prayers for the Prince of Orange, 
which some high-calvinistic ministers were gradually introducing, in the latter half of 
the seventeenth century, and in 1663 a decree was issued ordaining to pray first of all 
" for their noble high mightinesses, the estates of Holland and West Friesland, as the 
true sovereign, and only sovereign power after God, in this province; next, for the 
estates of the other provinces, their allies, and for all the deputies in the assembly of 
the States General, and of the Council of State." 

" Separatismus," as German historians have called the tendency of the German 
princes to make themselves as independent of the empire as possible, until their 
treason against the country reached " sovereignty," has made the political history of 
Germany resemble the river Rhine, whose glorioxis water runs out in a number of 
shallow and muddy streamlets, having lost its imperial identity long before reaching 
the broad ocean. 



AND SELF-GOVERNMENT. 171 



CHAPTER XVI. 

REPRESENTATIVE GOVERNMENT, CONTINUED. BASIS OF PROP- 
ERTY. DIRECT AND INDIRECT ELECTIONS. 

28. The prominent points of a national representative 
government, considered as a guarantee of liberty,, consist in 
the representative principle, that is, the basis of representation 
and the right of voting for the representative, in the election 
laws, in the fact that those and those only who have the right 
to vote do vote, (hence the importance, and, I believe, the 
necessity, of registration laws,) and in the organization of the 
representative legislature, with its own protection and liberties. 

All that we can say regarding the requirements of Anglican 
liberty with reference to the principle of representation, is that 
it be a broad or popular one. Universal suffrage cannot be 
said to be an Anglican principle, whatever the American view, 
of which we shall treat by-and-by, may be. The application 
of the principle of a wide popular representation, however, or 
an extensive right of voting, has constantly though slowly 
expanded in England, and continues to be expanding, 

The English, not allowing universal suffrage or indeed a 
representation based upon numbers alone, require some limit 
beyond which the right of voting shall not go. 1 This limit is, 



1 [The system of representation in Great Britain had long been most unequal 
and absurd until 1832. To mention but one fact — out of 658 members of the 
house of 'commons, 487 were nominees of the aristocracy or of the government, 
and only 173 represented independent constituencies. In 1832, after a great 
struggle, a reform bill was passed, by which (1) fifty-six rotten boroughs, return- 
ing one hundred and eleven members, were disfranchised, and other small 
boroughs lost in all thirty members; (2) twenty-two large towns, including dis- 
tricts of London, gained the right to return two members each, twenty to return 
one each, and the members for the larger counties were increased from 94 to 
159. (3) As for the right of electing — in the boroughs it was given to 10/. 



1*72 ON CIVIL LIBERTY 

as a general rule, which has however its exceptions, indicated 
either by property or by a certain annual expense which 
usually designates the amount of income over which man may 
dispose, namely, house-rent. Hence it is often said that prop- 
erty is the basis of representation in England. This is not 
correct. Property, or the enjoyment of a certain revenue 
either from acquired property or from an industrial occupa- 
tion, gives the right of voting, but it is not the basis of repre- 
sentation. 

When it is maintained in modern times that property ought 
to be the basis of representation, or it is asserted that the 
English constitution is founded on property, an inappropriate 
term is used, which carries along with it erroneous associations 



householders resident in the place, paying rates and not receiving relief from the 
parish. In the counties several classes were added to the old forty-shilling 
freeholders, viz. : copyholders and leaseholders for terms of years, and tenants at 
will paying a rent of 50/. a year. (See May, i. chap. 6.) 

The more recent bill of 1867, for reforming representation, contains among 
other provisions the following of principal importance. (1) The franchise. In 
the boroughs any full-aged man not legally incapacitated can vote in parliamentary 
and municipal elections, who has been for twelve months an inhabitant, as owner 
or tenant, of any dwelling-house, has been rated to rates for the relief of the 
poor, and paid his rates like others; but no joint occupier can vote. Also the 
vote is given to every lodger in the boroughs who is sole tenant of a dwelling- 
house of the clear yearly value of 10/. or upward, has resided there twelve months 
before the last day of July of any year, and put in a claim to be registered. In 
the counties, any man of similar status can vote, who is seised in law or at equity 
of any lands or tenements of freehold, copyhold, or any other tenure, for his own 
or another's life or any lives, of the clear yearly value of not less than 5/. He 
also has the vote who is lessee or assignee of lands, on any tenure, for the un- 
expired residue of any term originally created for a period of not less than 60 
years, of at least 5/. net yearly value; and again, one who occupies lands of the 
ratable value of 12/. or over, has been rated and paid rates. (2) Distribution 
of seats in parliament. No borough having in 1861 a population of less than 
10,000 could return more than one member. 38 boroughs were thus reduced, 10 
new boroughs were created, 3 cities returned three members instead of two, 2 old 
boroughs returned two instead of one, I borough was divided into two, and 13 
counties were subdivided so as to return 35 members. (3) In London no one 
can vote for-more than three, and in places where three members are returned, no 
one can vote for more than two. In 1872, ballot, with nomination of candi- 
dates, was introduced. The balloting has some rather troublesome formalities.] 



AND SELF-GOVERNMENT. 



73 



in almost all discussions on this subject. When we say that 
population is the basis of representation, we mean indeed that 
one representative is chosen for a distinct number of repre- 
sented citizens, and that therefore a large population should 
have more representatives than a small one ; but when it is 
said that property is or ought to be the basis of representa- 
tion, we mean in almost all cases nothing more than that a 
certain amount of property or revenue is required to entitle a 
man to vote. The Roman constitution ascribed to Servius 
Tullius was really founded upon property, because the six 
classes of citizens actually took a share in the government of 
the state in proportion to the property they held. 1 Thus like- 
wise there is a partial representation of property prescribed 
by the constitution of South Carolina, for the composition of 
the state senate, inasmuch as the small but wealthy divisions 
of the lower part of the state elect a number of senators 
disproportionately large compared to the number of senators 
sent from the upper districts of the state, which are very 
populous and possessed of proportionately less property. This 
was at least the case when the constitution was adopted. 2 

What is really meant when it is said that a constitution 
ought to be founded on property, is this : that a minimum 
amount of property ought to be adopted as the last line be- 
yond which no suffrage ought to be granted, but not that a 
capital of a million or the possession of a thousand acres of 
land ought to be entitled to a greater share in government 
than the possession of a few thousand dollars. It is meant 
that we seek for a criterion which will enable us to distinguish 
those who have a fair stake in the welfare of the state from 
those who have not. But here occurs at once the question : 
Is this criterion in our age any longer safe, just, and natural, 
which it may be supposed to have been in former ages ? 3 Are 



1 [But it was majority of centuries, and not of votes, which determined an 
election.] 

2 [It is perhaps needless to say that great changes have been made in the con- 
stitution of this state since the end of the war in 1865.] 

3 [There are multitudes in the United States who still believe that universal 



1/4 ON CIVIL LIBERTY 

there not thousands of men without property who have quite 
as great a stake in the public welfare as those who may possess 
a house or enjoy a certain amount of revenue ? This criterion 
becomes an actual absurdity when by property landed prop- 
erty only is understood. It was indeed in the middle ages 
almost the exclusive property of lasting and extensive value ; 
but nothing has since changed its character more than prop- 
erty itself. This whole question is one of vastest extent, 
and emphatically belongs to the science of politics and real 
statesmanship. In regard to the subject immediately in hand, 
we have only to repeat that an extensive basis of representa- 
tion is doubtless a characteristic element of Anglican liberty. 

29. As important as the basis of representation — indeed, 
in many cases more important — is the question whether there 
shall be direct elections by the people, or whether there shall 
be double elections ; that is to say, elections of electors by the 
constituents, which electors elect the representative. It may 
be safely asserted that the Anglican people are distinctly in 
favor of simple elections. Elections by electing middle men 
deprive the representation of its directness in responsibility 
and temper ; the first electors lose their interest, because they 
do not know what their action may end in ; no distinct can- 
didates can be before the constituents and be canvassed by 
them, and, inasmuch as the number of electors is a small one, 
intrigue is made easy. 

The fact that a double or mediate election foils in a great 
degree the very object of a representative government, is so 
well known by the enemies of liberty, that despotic govern- 
ments, unable to hold their absolute power any longer, have 
frequently struggled hard to establish universal suffrage with 
double election. An intention to deceive, or a want of 
acquaintance with the operation of the principle, must explain 
the measure. 1 I believe that neither American nor English- 



suffrage is the root of all our political evils. In one state at least — Connecticut 
— the capacity to read is made a condition for being made a " freeman."] 

1 According to the present constitution of Prussia (1859) there is universal 
suffrage for the election of a certain number of electors, and in addition a 



AND SELF-GOVERNMENT. 175 

man would think the franchise worth having were double 
elections introduced, and so decidedly is the simple election 
ingrained in the Anglican character, that in the only notable 
case in which a mediate election is prescribed in America, 
namely, the election of the President of the United States, 
the whole has naturally and of itself become a direct election. 
The constitution is obeyed, and electors are elected, but it is 
well known for which candidate the elector is going to vote, 
before the people elect him. There is but one case, of old 
date, in which an elector, elected to vote for a certain candi- 
date for the presidency, voted for another, and his political 
character was gone for life ; while in the month of November, 
1856, the legislature of South Carolina, the only legislature 
in the United States which has retained for itself the election 
of presidential electors, actually " instructed" the electors to 
vote for Mr. Buchanan, and in the state of Pennsylvania 
committees belonging to different parties or sections of parties 
agreed upon certain " Union Electoral Tickets" for the elec- 
tion of electors, to satisfy the claims of the different voters. 
These instances, and many more might be given, show how 
the principle of a double election has been wholly abandoned 
in the election for the president, although the form still exists. 
Civil liberty demands a fair representative system ; the 
latter requires that the representatives really represent the 
people, which is by no means necessarily obtained by simple 
universal suffrage. Indeed, it is one of the highest problems 
of political philosophy on the one hand, and of genuine states- 
manship on the other, to establish, combine, and, as circum- 
stances may require, to change the basis of representation. 
In England we find that a large number of persons lately 
urged an additional " representation of education." Essential 
representation requires a fair representation of the minority, 1 
which, until now, has been obtained, in the system of Anglican 



graduated property qualification for the election of other electors, who with the 
former elect representatives. 

1 See Political Ethics on Opposition and Representatives. 



176 ON CIVIL LIBERTY 

liberty, by making election districts sufficiently small, so that 
persons of different political opinions would be elected, and by 
discountenancing " general tickets." It might be supposed 
that the most consistent method, opposite to the " general 
ticket," would be to make election districts so small that each 
elects but one person, as the present constitution of the state 
of New York prescribes ; z but practice, it seems, does not bear 
out this supposition in the mentioned state. When election 
districts are very small, many citizens whom it is most desira- 
ble to see in the legislature decline contending with paltry 
local interests and jealousies. And here it may be mentioned 
that a marked difference between England and America con- 
sists in the fact that in the first-mentioned country voters 
may take their representative from any portion of the coun- 
try, while in America the principle prevails, we believe univer- 
sally, that the representative must be a resident in his con- 
stituency, which is an additional reason that election districts 
ought not to be too narrow. 2 

But the idea of representing the minority in a more direct 
manner than by a minority in the house of representatives 
has been much discussed of late in England, and, to judge 
from the journals of the day, there seem to be many persons 
who believe that this could best be obtained by obliging each 
v.oter to vote for a number of representatives less than the 
whole number, to be sent to parliament, for instance, for two 
members, if three are to be sent there, or for three, if five are 
to be sent. This novel feature seems to have been actually 
adopted in some colonial constitutions. No one is able to say 
how such a principle may operate in certain conditions of the 
voters, but-, as a general principle, it would seem injudicious, 
inoperative toward the desired object, and not Anglican. An- 
other method was adopted to secure the representation of the 



1 1859. 

2 [A resident not necessarily in the district, but in the state which he repre- 
sents. " No person shall be a representative . . . who shall not, when elected, 
be an inhabitant of that state in which he shall be chosen." Constit., art. i. 
sect. 2, 2.] 



AND SELF-GOVERNMENT. 



177 



minority, in the so-called Ruatan Warrant, in 1856. In this 
instrument every voter received the right to give, if four repre- 
sentatives are to be elected, all four votes to one person, or 
three to one and one to another, or to cast his four votes in 
equal halves for two persons. This is legalizing, and indeed 
intensifying, the voting of " plumpers," T as it is vulgarly called 



1 [The subject of representing the minority — so important in a country where 
government by party prevails — has, since Dr. Lieber published his second edition 
of this work, been much discussed, and already has a large literature of its own. 
I have caused two notes of the author's, which of course could not duly present 
the subject to the reader, to be omitted, and have put into their place a simple 
account of the methods which have been suggested for attaining this end, with 
the briefest possible comments. I mention — I, the limited 'vote — i.e., the vote for 
a less number of names than there are places, as for two when three persons 
are to be chosen. This method was introduced into the bill of 1867 for reform- 
ing representation in Great Britain. 2. The cumulative vote, where the voter is 
allowed to cast all or more than one at least of his votes for one person — eg., to 
cast two, three, or four for one candidate, or to divide them among several. This 
plan is especially applicable when the practice of voting by general tickets pre- 
vails. 3. The election by lists, a Swiss plan, according to which a certain num- 
ber of lists of candidates, as many on each list as there are representatives in all 
in a district, are prepared beforehand, and each voter votes for one of these lists. 
The representatives are selected from each of these lists according to the ratio of 
the votes on each list to the entire number of votes — e.g., if there are four lists, 
and 10,000 voters, and 4000 votes for one list, 3000 for another, 2000 for a third, 
1000 for a fourth, then 4, 3, 2, I would be returned as representatives from the 
several lists. 4. Preferential voting, or Mr. Thomas Hare's plan, in a book first 
published in 1859, and which has gone through four editions. This plan has been 
advocated by J. S. Mill in his Representative Government, chap, vii., and by 
other persons of note. This plan provides that each voter or elector may vote in 
the order of preference for a number of persons, not confining himself in his selec- 
tions to his own locality. When the votes are counted, the person having a 
number of votes larger than the electoral quota, that is, larger than the number of 
voters divided by the number of representatives, is elected, and all the votes for 
him above the quota are carried down to the next person on the list needing them 
in order to be elected. The somewhat puzzling details of this plan must be 
passed by. Its advantages are that it gives a fair chance to all interests and 
classes of thinkers to unite, although dispersed over a state or country; and no 
elector would be represented by one whom he had not chosen. 5. Substitute 
voting. Candidates may cast surplus votes, or those over the electoral quota, and 
insufficient votes, or those under, and may thus fill up the places which have not 
been filled by the voting of the electors. 6. Proxy voting, by which a repre- 
sentative may cast as many votes as he receives multiples of the electoral quota. 



i;8 ON CIVIL LIBERTY 

in this country, a kind of voting generally considered unfair 
and dishonest, and which it would be just and right to provide 
against by our constitutions. Each ballot ought to contain as 
many names as representatives are to be voted for ; if not, it 
ought to be thrown out. 

It does not seem to be the Anglican principle to elect, with 
the representative, his substitute in case of absence of the 
former from the legislature. If a representative resigns or 
dies, another is elected; if he absents himself, the constituents 
lose his vote. It seems that representation is considered too 
direct a relation to admit of a substitute beforehand. Yet 
for conventions it is customary in America to elect substitutes. 
They do not allow of sufficient time for a new election. On 
the continent of Europe, sappleans are immediately elected. 1 

As a matter of historical curiosity, I would direct attention 
to the circuitous ways and multiplied elections by which it 
was frequently attempted in the middle ages to insure an 
impartial or pure election. The master of the Knights of 
Malta was elected by no less than seventeen consecutive elec- 
tions of electors, each election connected with oaths; 2 and the 
Doge of Venice was elected by nine different acts, namely, five 
elections alternating with four acts of drawing lots, 3 with the 
addition of collateral votings. 



These plans admit of some modifications. There might, for instance, be an 
aliquot part of the number of representatives chosen from localities, and the rest 
chosen from the state at large on Mr. Hare's plan. 

All of these plans, which imply voting for persons outside of a small area, re- 
quire more knowledge of men than belongs to the great majority of voters under 
a system of universal suffrage.] 

1 We elect substitutes for executive officers. The Roman custom was to take, 
in case of need, the predecessor of the failing incumbent, a principle adopted, at 
least in former times, in Geneva and other cities. [When a consul or tribune 
died, the surviving colleague, or colleagues, at first co-optated another. After- 
wards a colleague was chosen, (suffectus.) When inferior magistrates died or 
resigned, the superior held the comilia to fill his place. See T. Mommsen, Rom. 
Staatsr., vol. i. p. 161.] 

2 Vertot's History of the Knights of Malta, folio edition, London, 1728, vol. 
ii., Old and New Statutes. 

3 Daru, Histoire de Venise, Paris, 1821, vol. i. 



AND SELF-GOVERNMENT. 179 

30. The representative principle farther requires that the 
management of the elections be in the hands of the voters, or 
of a popular character ; that especially the government do not 
interfere with them, either in the election bureau itself, or by 
indecently proposing and urging certain candidates ; that the 
house for which the candidates are elected be the sole judge of 
the validity of the election, and that the opening of the poll 
do not depend upon the executive, which by mere omission 
might prevent the entire election in order to exclude a dis- 
tasteful citizen from the house. 

The beginning of an election, the appointment of managers, 
the protection of the minority in this matter, and the con- 
scientious counting of votes, where the ballot exists, are always 
matters of much interest and of great practical difficulty, to 
all those who have not traditionally learned it. Collections of 
election laws are therefore very instructive ; and the labor of 
giving birth to an election with nations unaccustomed to liberty 
is very great. Mr. Dumont gives some instructive and amusing 
anecdotes, relating to the first French elections, in his Memoirs 
of Mirabeau. 

The English law is that all the military must leave the 
place where an election is going on, and can only enter it 
when called in by the town authorities or the justices of the 
peace, in case of riot. 

The British house of commons is the sole judge of the 
validity of elections ; and the same office is assigned to the 
house of representatives by the American constitution. 1 

One of the gravest charges against the Duke of Polignac 
and his fellow-members of the cabinet, when they were tried 
for their lives after the revolution of 1830, was that they had 
allowed or induced Charles X. to influence certain electors, by 
letter, to elect government candidates ; while the government 
under the late so-called republic openly supported certain 

1 A full statement of all the laws relating to these guarantees in England will 
be found in Stephens's De Lolme, Rise and Progress of the British Constitution ; 
and Story's Commentaries on the Constitution of the United States gives our con- 
stitutional law on these subjects. 



180 ON CIVIL LIBERTY 

persons as government candidates, and bishops wrote then, 
and have since sent, solemn pastoral letters, calling on their 
flocks to elect men of certain political color. It is wholly in- 
different to decide here whether peculiar circumstances made 
this interference necessary. I simply maintain that it is not 
liberty. 

31. Representative bodies must be free. This implies that 
they must be freely chosen, neither under the threat or violence 
of the executive, nor of the rabble or whatever portion of the 
people ; I that when met, they are independent of the threat 
or seduction of the executive, or of the mob, armed or not 
armed ; that they are protected by the law as a representative 
body; and that a wise parliamentary law and usage protect, 
within the body, the rights of each representative and the 
elaboration of the law. 

Representative legislatures cannot be truly the organisms 
through which public opinion passes into public will, nor can 
they be really considered representative bodies, if the mem- 
bers, or at least the members of the popular branch, are not 
elected for a moderately short period only ; if the legislature 
does not sit frequently; if the elections for the popular branch 
are not for an entire renewal of the house; and if the member 
is made answerable for what he says in the house to any one 
or any power besides the house to which he belongs. 

What a moderately short period or the frequency 7 of sessions 
means, cannot, as a matter of course, be absolutely stated. 
Fairness and practice, as well as the character of the times, 
must necessarily settle these points. England had a law 



1 Fearful cases to the contrary have happened in France and our own country. 
In the former country a court of justice decided against a person, hecause, not 
being the government candidate, he had dared to print and distribute his own 
ticket. Mr. de Montalembert made a speech against the abuse, whereupon 
the minister of the Interior, Mr. Billault, formerly a socialist, issued a circular 
to the' prefects, instructing them, April, 1857, how to conduct themselves 
regarding the distribution of election tickets. In our country sanguinary troubles 
have occurred in New Orleans and Baltimore, in October, 1857, which called 
forth proclamations of the governors that revealed a frightful state of things. 
And these crimes at elections were not restricted to the two mentioned cities. 



AND SELF-GOVERNMENT. x 8i 

that, from the year 1696, each parliament should not last 
longer than three years, but in 17 16 the septennial bill was 
carried, under a whig administration, forced to do it by the 
intrigues of the tories, who were for bringing back the 
Stuarts. 1 This law has ever since prevailed ; but even Pitt 
called it, in 1783, one of the greatest defects in the system 
of popular representation. Chatham, his father, had expressed 
himself against it 2 before him, and it would really seem that 
England will return, at no distant time, to a shorter period of 
parliaments. 3 

When Count Villele, in 1824, was desirous of diminishing 
the liberal spirit of the French charter, he introduced and 
carried a septennial bill, which was, however, abolished in 1830 
by the " July revolution." Parliaments for too short a period 
would lead to a discontinuous action of government, and un- 
settle instead of settling ; hence they would be as much 
against liberty as too long ones. In America, two years have 
become a pretty generally adopted time for the duration of 
legislatures. It is a remarkable fact that the people in 
America feel so perfectly safe from attacks of the executive 
that, in several states, where the constitutions have been 
revised, a fundamental law has been enacted that the legis- 
lature shall not meet oftener than every two years. This is 
to avoid expense and over-legislation. The general principle 
remains true that "parliaments ought to be held frequently," 
as the British Declaration of Rights and Liberties ordains it. 
The Constitution of the United States makes the meeting and 
dissolution of congress entirely independent of the executive, 
and enacts that congress shall meet at least once in every 



1 [For the triennial bill of the Long Parliament, Feb. 16, 1641, and its repeal 
in 1664, but with the provision continued that parliaments should not be inter- 
mitted for more than three years, see Hallam, ii. pp. 131, 447. The govern- 
ment could not be carried on with an annual session of parliament. Nothing 
kept the estates on the continent from a fit development so much as frequent and 
long intermissions of their sittings.] 

2 Volume ii. page 174, of Correspondence of William Pitt, Earl of Chatham. 

3 I have given a sufficiently long account of the Septennial Bill, under this 
head, in the Encyclopaedia Americana. 



1 82 ON CIVIL LIBERTY 

year, on the first Monday in December, and that the house 
of representatives shall be entirely renewed every second 
year. 

As to the irresponsibility of members for their remarks in 
parliament, the Declaration of Rights enacts " that the freedom 
of speech, and debates or proceedings in parliament, ought not 
to be impeached or questioned in any court or place out of 
parliament." This was adopted by the framers of our con- 
stitution, in the words that " for any speech or debate in either 
house, they [senators and representatives] shall not be ques- 
tioned in any other place." J 

32. A farther and peculiar protection is granted to the 
members of the legislature, both in the United States and in 
England, by protecting them against arrest during session, ex- 
cept for certain specified crimes. The English house of com- 
mons " for the first time took upon themselves to avenge their 
own injury, in 1543," 2 when they ordered George Ferrers, a 
burgess who had been arrested in going to parliament, to be 
released, and carried their point. "But the first legislative 
recognition of the privilege was under James I." 3 The Con- 
stitution of the United States enacts that senators and repre- 
sentatives shall " in all cases, except treason, felony, and 
breach of the peace, be privileged from arrest during their 
attendance at the session of their respective houses, and in 
going to and returning from the same." 



1 Free discussion on all things that appear important to the representatives is 
a right which was obtained after hard struggles, and only in comparatively recent 
times. Elizabeth repeatedly warned the commons, in no gentle terms, not to 
meddle with high matters of state, which they could not understand. James I. 
and Charles I. did the same. 

A similar spirit is now visible on the continent of Europe in unfree or half-free 
countries. In the bed of justice, held in 1602, Louis XIV., then fourteen years 
old, forbade his parliament [which, however, was properly a judicial body] to 
deliberate on government and finance or upon the conduct of the ministers of 
his choice, and forbade its members to assume too sumptuous habits in the 
palaces of the great. Chevenix, on Nat. Charact., vol. ii. p. 510. 

2 Hallam, Hist, of English Constitution, 5th edit., vol. i. p. 268. 

3 Ibidem, vol. i. p. 303. 



AND SELF-GOVERNMENT. 1 83 

33. It is farther necessary that every member should possess 
the initiative, or right to propose any measure or resolution. 
This is universally acknowledged and established where Angli- 
can liberty exists, not by enactment, but by absence of prohibi- 
tion, and as arising out of the character of a member of the 
legislature itself In most countries not under the aegis of 
Anglican liberty, this right of the initiative has been denied the 
members, and government, that is, the executive, has reserved 
it to itself. So has the so-called legislative corps of the 
present French empire no initiative. Napoleon III. took it 
to himself exclusively, immediately after the coup d'etat. 
The French legislative corps has indeed not even the privi- 
lege of amendment ; it has not the right of voting on the 
ministerial estimates, except on the whole estimate of one 
ministry at once. 1 In some countries, as in France under the 
charter of the July revolution, the initiative is vested in the 
houses and in government ; that is to say, the government, as 
government, can propose a measure through a minister, who 
is not a member of the house. In England no bill can be 
proposed by the executive as such, but, as every cabinet minis- 
ter is either a peer or must contrive to be elected into the 
commons, the ministers have of course the right of the initia- 
tive as members of their respective houses. The Constitution 
of the United States prohibits any officer of the United States 
from being a member of either house, and the law does not 
allow the members of the administration a seat and the right 
to speak in the houses. Some think that a law to that effect 
ought to be passed. The representatives of our territories are 
in this position ; they have a seat in the house of representa- 
tives, and may speak, but have no vote. A minister had the 
right to speak in either house, under the former French char- 
ters, in his capacity of cabinet minister, whether he was a 
member of the house or not. Whenever the executive of the 
United States is desirous to have a law passed, the bill must 



1 Why, indeed, it is called legislative corps does not appear. Legislative 
corpse would be intelligible. 



1 84 



ON CIVIL LIBERTY 



be proposed by some friend of the administration who is a 
member of one or the other house. 

It has been mentioned already that the initiative of money 
bills belongs exclusively to the popular branch of the legis- 
lature, both in the United States and in England, by the con- 
stitution in the one, and by ancient usage, which has become 
a fundamental principle, in the other. 



AND SELF-GOVERNMENT. 185 



CHAPTER XVII. 

PARLIAMENTARY LAW AND USAGE. — THE SPEAKER. TWO 

HOUSES. THE VETO. 

34. It is not only necessary that the legislature be the sole 
judge of the right each member may have to his seat, but 
that the whole internal management and the rules of proceed- 
ing with the business belong to itself. It is indispensable that 
the legislature possess that power and those privileges which 
are necessary to protect itself and its own dignity, taking 
care, however, that this power may not, in turn, become an 
aggressive one. 

In this respect are peculiarly important the presiding officer 
of the popular branch, or speaker, the parliamentary law, and 
the rules of the houses. 

The speaker of the English commons was in former times 
very dependent on the crown. Since the revolution of 1688 
his election may be said to have become wholly independent. 
It is true that the form of obtaining the consent of the mon- 
arch is still gone through, but it is a form only, and a change 
of the administration would unquestionably take place were 
the ministers to advise the crown to withhold its consent. 

Were the refusal insisted on, disturbances would doubtless 
follow, which would end in a positive declaration and distinct 
acknowledgment on all hands that the choice of the speaker 
"belongs, and of right ought to belong," to the house of com- 
mons. There is no danger on that score in England, so long 
as a parliamentary government exists there at all. The 
growth of the commons' independence in this respect is as 
interesting a study as it is historically to trace step by step 
any other expanding branch of British liberty. 

The Constitution of the United States says that " the house 



1 86 ON CIVIL LIBERTY 

of representatives shall choose their speaker and other offi- 
cers," and, so chosen, he is speaker, without any other 
sanction. 

The charter granted by Louis XVIII. of France pre- 
scribed that " the president of the chamber of deputies is 
nominated by the king from a list of five members presented 
by the chamber." This was altered by the revolution of 
1830, and the charter then adopted decreed that "the presi- 
dent of the chamber of deputies is to be elected by the 
chamber itself at the opening of each session." It need not 
be added that, according to the " constitution of the empire," 
the emperor of the French simply appoints the president of 
the " legislative corps." In all the states of the Union the 
speakers are within the exclusive appointment of the houses. 
In the British colonial legislatures the speaker must be con- 
firmed by the governor, but, as was observed of the speaker of 
the commons, if consent were refused it would be a case of 
disagreement between the administration and the legislature, 
which must be remedied either by a new administration or a 
new house — that is, by new elections. 

The presiding officer of the upper house is not made thus 
dependent upon it. In England, the chief officer of the law, 
the lord chancellor or keeper of the seals, 1 presides over the 
house of peers. There seems to be a growing desire in Eng- 



1 A keeper of the seals, whom usage does not require to be a peer, is now ap- 
pointed as the chief officer of the law, only when, for some reason or other, no 
lord chancellor is appointed. The keeper of the seals, nevertheless, presides in 
the house of lords, or " sits on the woolsack." The chancellor is now always 
made a peer if he is not already a member of the house of lords ; and he is always 
a member of the cabinet. This mixture of a judicial and political character is 
inadmissible according to American views ; yet it ought to be remembered, as an 
honorable fact, that no complaint of partiality has been made in modern times 
against any lord chancellor in his judicial capacity, although he is so deeply 
mixed up with politics. Lord Eldon was probably as uncompromising, and per- 
haps as bigoted, a politician as has ever been connected with public affairs, but I 
am not aware that any suspicion has existed on this ground against his judicial 
impartiality. There is at present a traditional fund of uncompromising judicial 
rectitude in England which has never been so great at any other period of her 
own history, or excelled in any other country. 



AND SELF-GOVERNMENT. 1 87 

land wholly to separate the lord chancellor from the cabinet 
and politics. At present he is always a member of the ad- 
ministration, and, of course, leaves his office when the cabinet 
to which he belongs goes out. It will be an interesting 
subject to determine who shall preside over the lords, if the 
change thus desired by many should take place. 

The United States senate is presided over by the Vice- 
President of the United States, who is elected by the Union 
at large, as the President is. It must be observed, however, 
that the chancellor on the woolsack, and the Vice-President 
of the United States as president of the senate, exercise no 
influence over their respective legislative bodies, that can 
in any degree be compared to that of the speakers over their 
houses. The American senate and the British house of lords 
allow but very little power, in regulating and appointing, to 
the presiding officer, who interferes only when called upon to 
do so. 1 

The power of the houses of parliament over persons that 
are not members, or the privileges of parliament, or of either 
house, so far as they affect the liberty of individuals and the 
support of their own power, constitute what is called parlia- 
mentary law — an important branch of the common law. Like 
all common law, it consists in usage and decisions ; there are 
doubtful points as well as many firmly settled ones. It must 
be learned from works such as Hatsell's Precedents, etc., 
Townsend's History of the House of Commons, and others. 

As a general remark, it may be stated that, with the rise of 
liberty in England, the jealousy of the house of commons also 



1 This difference in the position of the presiding officers appears, among other 
things, from the fact that the members of the house of lords address " My lords," 
and not the chancellor, while usage and positive rules demand that the member 
of the other house who wishes to speak shall address " Mr. Speaker," and 
receive " the floor" from him. The chancellor would only give the floor if ap- 
pealed to in case of doubt. In the United States senate, the president of the 
senate is, indeed, directly addressed, although occasionally " senators" have been 
addressed in the course of a speech. That body, however, appoints its commit- 
tees, and leaves little influence to the presiding officer, who, it will be remem- 
bered, is not a member of the senate, and has a casting vote only. 



1 88 ON CIVIL LIBERTY 

rose, and continued during the period of its struggle with the 
executive ; and that, as the power of the house has become 
confirmed and acknowledged, the jealousy of the house has 
naturally abated. I very much doubt whether at any earlier 
period the committee of privileges would have made the same 
declaration which it made after Lord Cochrane, in 1815, had 
been arrested by the marshal of the king's bench, while sitting 
on the privy councillor's bench in the house of commons, 
prayers not yet having been read. The committee declared 
that " the privileges of parliament did not appear to have 
been violated so as to call for the interposition of the house." 1 

The two American houses naturally claim the "power of 
sending for persons and papers and of examining upon oath," 
and they have also exercised the power of punishing disturb- 
ances of their debates by intruders, and libellers of members 
or whole houses. But no power to do so is explicitly conferred 
by the Constitution of the United States. 2 

Of far greater importance is the body of the rules of 
procedure and that usage which has gradually grown up as a 
part of common law, by which the dispatch of parliamentary 
business and its protection against impassioned hurry are 



1 I would refer the general reader, on this and kindred subjects, to the article 
Parliament, in the Political Dictionary, London, 1846. 

2 This is not the place for discussing the doubts which some have entertained 
regarding the power of the houses of congress to do that which is possessed by 
every court of justice, though the lowest, namely, to arrest and punish disturbers. 
The doubt is simply on the ground that it has not been conferred. But there are 
certain rights which flow directly from the existence of a thing itself, and some 
that are the necessary consequence of action and life, and without which neither 
can manifest itself. A legislative body without the power of sending for persons 
to be examined by committees would be forced to legislate, in many cases, in 
the dark. It is true that legislative bodies have become tyrannical ; but it must 
not be forgotten that wherever, in the wide range of history, any struggle for 
liberty has taken place, we find that a struggle to establish the habeas corpus 
principle has always accompanied it, and that this struggle for securing personal 
liberty is always against the executive. I do not remember a single case of an 
established and separate guarantee of personal liberty against parliamentary 
violence. 

Tne reader is referred to Mr. Justice Story's Comm. on the Const. U. S., chap, 
xii., and to Chancellor Kent's Commentaries. 



AND SELF-GOVERNMENT. 1 89 

secured, and by which the order and freedom of debate, fair- 
ness, and an organic gestation of the laws are intended to be 
obtained. Parliamentary practice, or rules of proceeding and 
debate, such as have been developed by England, independ- 
ently of the executive, and, like the rest of the common law, 
been carried over to our soil, form a most essential part of our 
Anglican constitutional, parliamentary liberty. This practice, 
as we will call it for brevity's sake, is not only one of the 
highest importance for legislatures themselves, but serves as 
an element of freedom all over the country, in every meeting, 
small or large, primary or not. It is an important, guarantee 
of liberty, because it serves like the well-worn and banked 
bed of a river, which receives the waters that, without it, 
would either lose their force and use by spreading over plains, 
or become ruinous by their impetuosity when meeting with 
obstruction. Every other nation of antiquity and modern 
times has severely suffered from not having a parliamentary 
practice such as the Anglican race possesses, and no one 
familiar with history and the many attempts to establish liberty 
on the continent of Europe or in South America can help 
observing how essentially important that practice is to us, and 
how it serves to ease liberty, if we may say so. 1 



1 The ancients had no parliamentary law and usage. The Greek agora could 
of course not have it. Mass meetings cannot debate; they can only ratify or 
refuse proposed measures. [But there was debate on the probouleumata of the 
senate at Athens, which might be added to or modified as well as rejected, and 
free discussion took place on other subjects. The laws of order also were not 
bad.] It is the same in the democratic Swiss cantons, where the people meet in 
primary assemblage. (See Political Ethics.) In the Roman senate there was no 
debating proper. There was rather a succession of set speeches ; and I may be 
permitted to state here that in debating oratory, in replying on the spot vigorously 
and clearly to an adversary, the best orators of the last and present centuries are 
greatly superior to the ancients. 

Since the publication of the first edition, an American senator, Mr. Edward 
Everett, has added his testimony to the vital importance of Anglican parlia- 
mentary rules. On December 8, 1853, when resolutions with reference to the 
late Vice-President of the United States, (and, therefore, presiding officer of the 
senate,) W. Rufus King, were under discussion, Mr. Everett observed, in the 
course of his remarks : 

" In fact, sir, he was highly endowed with what Cicero beautifully commends 



1 90 ON CIVIL LIBERTY 

It is not a French " reglement," prescribed by the executive 
with but little room for self-action ; nor does it permit legis- 
lative disorder or internal anarchy. It has been often observed 
that the want of parliamentary practice created infinite mis- 
chief in the first French revolution. Dumont mentions that 
there was not even always a distinct proposition before the 
convention ; and the stormiest sessions, which frequently ended 
by the worst decrees — the decrets d' acclamation — were those 
in which there were speeches and harangues without proposi- 
tions. Sir Samuel Romilly 1 says: "If one single rule had 
been adopted, namely, that every motion should be reduced 
into writing in the form of a proposition before it was put from 
the chair, instead of proceeding, as was their constant course, 
by first resolving the principle, as they called it, (decreter le 
principe,) and leaving the drawing up of what they had so 
resolved (or, as they called it, la redaction) for a subsequent 
operation, it is astonishing how great an influence it would 
have had in their debates and on their measures." 2 

The great importance of the subject and the general supe- 
riority of the English parliamentary practice have been ac- 
knowledged by French writers, practically acquainted with it ; 
especially by the author of a work the full title of which I shall 
give in a note, because it shows its interesting contents. 3 



as the boni Senatoris prudentia, the 'wisdom of a good senator;' and in his 
accurate study and ready application of the rules of parliamentary law he ren- 
dered a service to the country, not perhaps of the most brilliant kind, but 
assuredly of no secondary importance. There is nothing which so distinguishes 
the great national race to which we belong, as its aptitude for government by 
deliberative assemblies; its willingness, while it asserts the largest liberty of par- 
liamentary right, to respect what the senator from Virginia, in another connection, 
has called the self-imposed restrictions of parliamentary order; and I do not 
think it an exaggeration to say that there is no trait in their character which has 
proved more conducive to the dispatch of the public business, to the freedom of 
debate, to the honor of the country — I will say even which has done more to 
establish and perpetuate constitutional liberty." 

1 He was himself of unmixed French descent, as Lord Brougham observes, 
although his family had resided for generations in England. 

2 Memoirs of the Life of Sir Samuel Romilly, etc., 2d edit., vol. i. p. 103. 

3 A Treatise on the Formation of Laws, (Traite de la Confection des Lois,) 



AND SELF-GOVERNMENT. 191 

Foreigners frequently express their surprise at the ease with 
which, in our country, meetings, societies, bodies, communi- 
ties, and even territories, 1 constitute and organize themselves, 
and transact business without violence, and without any force 
in the hands of the majority to coerce the minority, or in the 
hands of the minority to protect itself against the majority. 
One of the chief reasons of this phenomenon is the universal 
familiarity of our people with parliamentary practice, which 
may be observed on board of any steamboat where a number 
of persons, entire strangers to one another, proceed to pass 
some resolution or other, and which they learn even as chil- 
dren. There are few schools the members of which have 
not formed some debating society, where parliamentary forms 
are observed, and where the rigorously enforced fine im- 
presses upon the boy of ten or eleven years the rules which 
the man of forty follows as naturally as he bows to an ac- 
quaintance. 2 

The Constitution of the United States says that " each house 



or an Inquiry into the Rules (Reglements) of the French Legislative Assemblies, 
compared with the Parliamentary Forms of England, the United States, Belgium, 
Spain, Switzerland, etc., by Ph. Vallette, Advocate, etc., and Secretary of the 
Presidency of the Chamber of Deputies, and by Benat Saint-Martin, Advocate, 
etc., 2d edit., Paris, 1839; with the words of Mr. Dupin, who long presided over 
the chamber, as motto : " The excellence of laws depends especially upon the 
care taken in the elaboration of the bills. ' The drawing up of laws constitutes a 
large share of their efficiency." 

1 As a striking instance may be mentioned the whole procedure of the people 
of Oregon, when congress omitted to organize the territory, and ultimately 
" Organic Laws" were adopted " until such time as the United States of America 
extend their jurisdiction over us." They were printed by the senate, May 21, 
1846, and, although consisting of a few pages only, form a document of great 
interest to the political philosopher in more than one respect. A French states- 
man of mark wrote to the author, years ago, from Algeria : " I wish your way 
of organizing distant territories, or of allowing them to organize themselves, 
could be transplanted to this colony." Justice requires to add now (1859) that 
our Kansas troubles had not then occurred. 

2 An excellent book of its kind is the small work of Judge L. S. Cushing, 
Rules of Proceeding and Debate in Deliberative Assemblies, Boston, Mass. It 
has gone through many editions. The same author published in 1855, Law and 
Practice of Legislative Assemblies in the United States. 



1 92 ON CIVIL LIBERTY 

may determine the rules of its proceedings, punish its members 
for disorderly behavior, and, with the concurrence of two-thirds, 
expel a member." If, however, the parliamentary practice had 
not already been spread over the colonies, like the common 
law itself, this power, justly and necessarily conferred on each 
house, would have been of comparatively little advantage. 
Parliamentary practice — that ars obstetrix animarum, as Mr. 
Bentham calls it, although it ought to be called the obstetric 
art of united bodies of men, for in this lies the difficulty — is 
not a thing % to be invented, nor to be decreed, but must be 
developed. 1 

It is not only a guarantee of the free share of every repre- 
sentative in the legislation of his country, but it is also, as has 
been indicated, a guarantee, for the people, that its legislature 
remain in its proper bounds, and that the laws be not decreed 
as the effects of mere impulse or passion. 

It is a psychological fact that whatever interests or excites 
a number of separate individuals will interest or excite them 
still more when brought together. They countenance one 
another ; and that psychical reduplication which, for bad or 
good, produces so great an effect wherever individuals of the 
same mind or acting under the same impulse come in close 
contact, must be guarded against in representative assemblies. 



1 Mr. Jeremy Bentham's Tactique des Assemblies Legislatives, edited by E. 
Dumont, Geneva, 1816, is no pure invention, and could have been written by an 
Englishman or American only. 

See also Mr. Jefferson's Manual of Parliamentary Practice for the use of the 
senate of the United States. 

There is a very curious book, Parliamentary Logic, etc., by Right Hon. W. 
Gerard Hamilton, (called in his time Single-Speech Hamilton,) with Considera- 
tions on the Corn Laws, by Dr. Samuel Johnson, London, 1808. The copy 
which I own belonged to Dr. Thomas Cooper. That distinguished man has 
written the following remark on the fly-leaf: " This book contains the theory of 
deception in parliamentary debate ; how to get the better of your opponent, and 
how to make the worse appear the better reason. It is the well-written work of a 
hackneyed politician. . . . The counterpart to it is the admirable tract of Mr. 
Jeremy Bentham on Parliamentary Logic, the book of Fallacies. No politician 
ought to be ignorant of the one book or the other. They are well worth (not 
perusing, but) studying. T. C." 



AND SELF-GOVERNMENT. 



193 



Parliamentary practice, as we possess it, is as efficient a means 
to calm and to regulate these excitements, as the laws of evi- 
dence and the procedure of courts are in tempering exciting 
trials and impassioned pleadings. 

These remarks may fitly conclude with the words of Judge 
Story, which he uttered when he left the speaker's chair of the 
Massachusetts house of representatives, to take his seat on 
the bench of the supreme court of the United States. They 
ought to be remembered by every one on both sides of the 
Atlantic that prizes practical and practicable liberty : 

" Cheered, indeed, by your kindness, I have been able, in 
controversies marked with peculiar political zeal, to appreciate 
the excellence of those established rules which invite liberal 
discussions, but define the boundary of right and check the 
intemperance of debate. I have learned that the rigid enforce- 
ment of these rules, while it enables the majority to mature 
their measures with wisdom and dignity, is the only barrier of 
the rights of the minority against the encroachments of power 
and ambition. If anything can restrain the impetuosity of 
triumph, or the vehemence of opposition — if anything can 
awaken the glow of oratory, and the spirit of virtue — if any- 
thing can preserve the courtesy of generous minds amidst the 
rivalries and jealousies of contending parties, it will be found 
in the protection with which these rules encircle and shield 
every member of the legislative body. Permit me, therefore, 
with the sincerity of a parting friend, earnestly to recom- 
mend to your attention a steady adherence to these venerable 
usages." 1 

35. If parliamentary practice is a guarantee of liberty by 
excluding, in a high degree, impassioned legislation, and aiding 
in embodying, in the law, the collective mind of the legisla- 
ture, the principle of two houses, or the bicameral system, 
as Mr. Bentham has called it, is another and no less efficient 
guarantee. 

Practical knowledge alone can show the whole advantage of 



1 Life and Letters of Joseph Story, Boston, Mass., 185 1, vol. i. p. 203. 

13 



194 



ON CIVIL LIBERTY 



this Anglican principle, according to which we equally discard 
the idea of three and four estates, and of one house only. 
Both are equally and essentially un-Anglican. Although, 
however, practice alone can show the whole advantage that 
may be derived from the system of two houses, it must appear, 
nevertheless, as a striking fact to every inquirer in distant 
countries, that not only has the system of two houses his- 
torically developed itself in England, but it has been adopted 
by the United States, and all the states, as well as by the 
single territories, and by all the British colonies, where 
local legislatures exist. We may mention even the African 
state of Liberia. The bicameral system accompanies the 
Anglican race like the common law, 1 and everywhere it suc- 
ceeds ; while no one attempt at introducing the unicameral 
system, in larger countries, has so far succeeded. France, 
Spain, Naples, Portugal, — in all these countries it has been 
tried, and everywhere it has failed. The idea of one house 
flows from that of the unity of power, so popular in France. 
The bicameral system is called by the advocates of democratic 
unity of power an aristocratic institution. This is an utter 
mistake. In reality it is a truly popular principle to insist on 
the protection of a legislature divided into two houses ; and as 
to the historical view of the question, it is sufficient to state 
that two houses have been insisted upon and rejected by all 
parties, aristocratic and popular, according to the circum- 
stances of the times. In this the principle resembles the 
instruction of the representative by his constituents. This 
too has been insisted on and rejected by all parties at different 
periods. 

Attempts were made in our earlier times to establish a single 
house, for instance in Pennsylvania, 2 but the practical and 



1 No instance illustrating this fact is perhaps more striking than the meeting 
of settlers in Oregon territory, when congress had neglected to provide for them, 
as has been mentioned in a previous note. The people met for the purpose of 
establishing some legislature for themselves, and at once adopted the principle 
of two houses. It is to us as natural as the jury. 

2 It was at the period when Dr. Franklin asked why people would put horses 



AND SELF-GOVERNMENT. 1 95 

sober' sense of the Anglican people led them back to the two 
houses. The danger was perhaps not trifling. "During the 
American revolution, there grew up a party in every state 
who, ignorant of this great political truth, opposed the notion 
that our state constitutions should be conformed to the English 
model. No less a person than Dr. Franklin was of this party. 
And through his influence, in a great measure, Pennsylvania 
adopted a government of a single legislative assembly. When 
he went to Paris, he took with him the different American 
constitutions. Mr. Turgot, to whom he showed them, dis- 
regarding, as Dr. Franklin had done, the voice of history, 
approved that of Pennsylvania, and condemned those framed 
after the English constitution. In a letter to Dr. Price of 
England, Mr. Turgot says : ' I am not satisfied with the 
constitutions which have hitherto been formed for the different 
states of America. By most of them, the customs of England 
are imitated without any particular motive. Instead of col- 
lecting all authority into one centre, that of the nation, they 
established different bodies, a body of representatives, a council, 
and a governor, because there is in England, a house of 
commons, a house of lords, and a king. They endeavored to 
balance three different powers, as if this equilibrium, which in 
England may be a necessary check to the enormous influence 
of royalty, could be of any use in republics founded upon the 
equality of all the citizens, and as if establishing different 
orders of men was not a source of divisions and disputes.' 
This notion of a single national assembly began to gain ground 
so rapidly in America, that the elder Adams, in order to 
counteract it, in the beginning of the year 1787 published his 
Defence of the American Constitutions. In the September 
of the same year, the national convention changed the federal 



not only before, but also behind the wagon, pulling in opposite directions. The 
true answer would have been, that whenever a vehicle is pulled down an inclined 
plane we actually do employ an impeding force, to prevent its being dashed to 
pieces. [Georgia, also, and the Confederation itself, had but one chamber. 
Franklin wished (Curtis's Hist.,i. 435) to introduce the same system Into the 
Constitution in the Convention of 1787.] 



196 ON CIVIL LIBERTY 

constitution from the single assembly of the confederacy, to a 
government formed after the English model. Pennsylvania 
changed her government also ; and all the states and territo- 
ries of this vast confederacy have now governments framed on 
the plan of the English." 1 

Mr. de Lamartine pronounced the true reason why we 
ought to hold fast to the bicameral system, although he spoke 
against it. When in the last French constituent assembly 
Mr. Odillon Barrot had urged with ability the adoption of two 
houses, Mr. de Lamartine replied that the great principle of 
unity (he meant, no doubt, of centralization) required the 
establishment of one house, and that, unless the legislature 
was vested in one house alone, it would be too difficult to 
make it pass over from a simple legislature to an assembly 
with dictatorial power. This is precisely the danger to be 
avoided. 2 Parliamentary practice and the two-house system 



1 I have quoted this long passage from the First Report of the Commissioners, 
appointed by the General Assembly of Maryland, to revise, simplify, and abridge 
the Rules of Practice, Pleadings, etc. in the courts of the State, Frederic City, 
Md., 1855, — a work important also with reference to the subject of codification. 
This first report is believed to have been written by Mr. Samuel Tyler, one of 
the commissioners, a gentleman alike distinguished as advocate and writer on 
philosophy. His last work, on the Progress of Philosophy in the Past and the 
Future, entitles him to a place among the profoundest writers on philosophy. 
His friend, the late Sir William Hamilton, acknowledged his great merits. 

The reader is referred to De Tocqueville's Ancien Regime for numerous pas- 
sages showing how general the error of Turgot was in France, and how sincerely 
the Anglican diversity, necessarily accompanying self-government, was dis- 
relished by the French, profoundly worshipping, not only unity of power, but 
also uniformity of action. 

2 The speech was delivered on the 27th September, 1848. Mr. de Lamartine 
speaks of a division of the sovereignty into two parts, by two houses! Poor 
sovereignty ! What strange things have been imagined under that word ! If the 
reader can find access to that speech, I advise him to peruse it, for it is curious 
from beginning to end, especially as coming from a person who for a time was 
one of the rulers of France. His exact words are these. Speaking of domestic 
dangers, he says: "To such a danger you must not think of opposing two or 
three powers. That which ought to oppose it is a direct dictatorship, uniting 
within its hand all the powers of the state." He adds more of the kind, but 
this extract will suffice. 

Mr. Lamartine committed another grave error. He said that two houses in 



AND SELF-GOVERNMENT. 



197 



are subjects of such magnitude that it is impossible here, 
where they are mentioned as guarantees, to enter upon details ; 
but I cannot dismiss them without recommending them to the 
serious and repeated attention of every one who may have 
looked upon them as accidents rather than essentials. The 
French acknowledge as the first thing to be obtained, power, 
force ; and their philosophical writers, such as Rousseau, seek, 
almost exclusively, a philosophical or legitimate source of that 
power. Hence their view of universal suffrage, and the power, 
be it that of an all-powerful Caesar, or of a concentrated single 
chamber, all-providing and all-penetrating, when once estab- 
lished, arising out of it. Hence the prosecution of Mr. de 
Montalembert, as having attacked the legitimate power of the 
emperor, when he had written against the French view of 
universal suffrage. The Anglicans seek, first of all, for free- 
dom, for self-government ; and then for guarantees of these. 

Experience has proved to the English and Americans that 
to have a measure discussed entirely de novo by a different 
set of men, with equal powers, and combined upon a different 
basis — that this, and the three readings, with notice and leave 
of bringing in, and the going into committee before the third 
reading, have a wonderful effect in sifting, moderating, dis- 
covering, and in enlightening the country. Take the history 
of any great act of parliament or congress, and test what has 



the United States were natural, because we are a confederacy, and the senate 
was established to represent the states as such. But he seems not to have been 
aware that all our states, in their unitary character, have established the same 
system, and that it is as natural to the men on the shores of the Pacific as to those 
in Maine, or to the settlers on the Swan River. 

I ought in justice to add, however, that in 1850 Mr. de Lamartine said, in his 
Counsellor of the People, that he was now for two houses, and that he had been 
for one house in 1848 because he wanted a dictatorial power ; and, added he, La 
dictature ne se divise pas. But how can a dictatorship be called undivided, 
when it belongs to a house composed of eight hundred members? And must 
not, in the nature of things, a division of execution always take place ? It is 
surprising that something temporarily desired for a dictatorship should have been 
insisted upon by Mr. Lamartine with so much vehemence as an integral part of 
the fundamental law; or was peradventure the constitution of 1848 intended not 
to last ? 



198 ON CIVIL LIBERTY 

been asserted. This effect of two houses, and the rules of 
procedure just mentioned, are indeed like so many pillars to 
the fabric of liberty. 

The question has been asked, Why should there be two 
chambers ? What philosophical principle is there enshrined 
in this number ? All we would answer is, that it has been 
found that more than one house is necessary, and more than 
two is too many. Three and even four houses belong to the 
medieval estates, and to the deputative, not to the modern 
national representative, system. The mischief of three houses 
is as great as that of three parties. The weakest becomes the 
deciding one by a casting vote. And one house only belongs 
to centralization. It is incompatible with a government of a 
co-operative or concurrent character, which we hold to be the 
government of freedom. 

I cannot agree with the opinion expressed by Lord Broug- 
ham in his work on Political Philosophy, that it is essentially 
necessary that the composition of the two houses should be 
based upon entirely different principles, meaning that the one 
ought not to be elective, and that it ought to represent entirely 
different interests. A thorough discussion of this subject 
belongs to the province of politics proper, but I ask the reader's 
indulgence for a few moments. 

If the two houses were elected for the same period, and by 
the same electors, they would amount in practice to little more 
than two committees of the same house ; but we want two 
bona fide different houses, representing the impulse as well as 
the continuity, the progress and the conservatism, the onward 
zeal and the retentive element, innovation and adhesion, which 
must ever form integral elements of all civilization. One house, 
therefore, ought to be large ; the other, comparatively small, 
and elected or appointed for a longer time. Now, as to the 
right of sitting in the smaller or upper house, of longer dura- 
tion, there are different modes of bestowing it. It may be 
hereditary, as the English peers proper are hereditary ; or the 
members may have seats for life and in their personal capa- 
city, as the French peers had under the charter. This is prob- 



AND SELF-GOVERNMENT. 1 99 

ably the worst of all these methods. It gives great power to 
the crown, and keeps the house of peers in a state of sub- 
mission, which hereditary peers generally do not know. Or, 
again, the members may be elected for life by a class, as 
Scottish representative peers are elected by the Scottish nobility 
for the British house of peers ; or the members may be simi- 
larly elected for one parliament alone, as the Irish peers are 
that sit in parliament ; or the people may elect senators for 
life, or for a shorter time, as the senators of Belgium a'nd all 
the senators in our states are ; or, lastly, the members of the 
house we are speaking of may be elected, not by the people 
in their primary capacity, but by different bodies, such as our 
senators of congress are. The senators of the United States 
are elected by the states, as states ; consequently an equal 
number of representing senators is given to each state, irre- 
spective of its size or population. 

It would be very difficult to pronounce the one or the other 
principle absolutely the best, without reference to circum- 
stances, and we are sure that Lord Brougham would be the 
last man that would maintain the absolute necessity of having 
a hereditary peerage wherever two houses exist. As to the 
different classes, or interests, however, which ought to be 
represented, I would only state that the idea belongs to the 
middle ages, and, if adopted, would lead at once to several 
estates again. It is hostile to the idea of two houses only. 
Why represent the different interests of the nation in two 
houses ? Are there not more broad, national interests ? It 
would be difficult indeed to understand why the land-owner 
in present England should have his house, and not the manu- 
facturer, the merchant, the wide educational interest, the 
sanitary interest, the artisan, the literary interest, with that of 
jpurnalism. The excellence of the bicameral system in our 
representative (and not deputative) government does not rest 
on the representation of different interests, but on the different 
modes of composing the houses, and their different duration. 1 



1 [Compare the defence of representation and protection of interests by Mr, 
Calhoun, Works, i., beginning.] 



200 ON CIVIL LIBERTY 



On the other hand, we may observe that when, in 1848, the 
French established a legislature of one house, they found 
themselves obliged to establish, by the constitution, a council 
of state, as the Athenians established the council (boule) to aid 
the general assembly (ecclesia). The French know, instinct- 
ively if not otherwise, that a single house of French repre- 
sentatives would be exposed to the rashest legislation. The 
council of state, however, is not public, the members are ap- 
pointecl by the executive ; in one word, what was gained ? 
Much indeed was lost. 

Whether the representative is the representative of his 
immediate constituents or of the nation at large, whether he 
ought to obey instructions sent him by his constituents — on 
these and other subjects connected with them I have treated 
at great length in my Political Ethics. I shall simply men- 
tion here the fact that civil liberty distinctly requires the 
representative to be the representative of his political society 
at large, and not of his election district. The idea that he 
merely represents his immediate constituents is an idea which 
belongs to the middle ages and their deputative system, — not 
to our far nobler representative system. The representative 
is not a deputy sent with simple powers of attorney, as the 
deputy of the middle ages was. 1 

36. I hesitate whether I ought to mention the Veto as an 
Anglican guarantee of liberty. I hold it to be in our political 
system a check upon the legislature, and therefore a protec- 
tion of the citizen ; one that can be abused, and probably has 
been abused ; but everything intrusted to the hands of man 
may be abused. The question concerns its probable average 
operation. 

Although the veto is thus acknowledged to be an important 
part of our polity, it may be said no longer to exist in England. 
It has been mentioned before, that should parliament pass a 
bill from which the ministers believe the royal assent ought to 



1 [The same is shown ethically by the consideration that the constituents, if 
collected, would be bound to regard the general welfare. The representative 
takes their duties on himself with their power.] 



AND SELF-GOVERNMENT. 201 

be withheld, they would not, according to the present usage, 
expose the king to an open disagreement with the lords and 
commons, but they would resign, upon which an administra- 
tion would be formed which would agree with parliament ; or 
parliament would be dissolved, and an " appeal to the country" 
would be made. 

Yet we have received the veto from England ; and it is all 
these considerations which make me hesitate, as I said before, 
to call the veto an Anglican guarantee. 

The use of the veto can become very galling, and at such 
times we often find the party, whose favorite measure has 
been vetoed, vehemently attacking the principle itself. It was 
thus that the whigs in the United States earnestly spoke and 
wrote against the principle, when General Jackson declined 
giving his assent to some measures they considered of great 
importance, and the democrats were loud in favor of the veto 
power because it had been used by a president of their own 
party. 

In treating this whole subject, much confusion has arisen 
from the ill-chosen word veto, after the term used by the 
Roman tribune. The veto of the Roman tribune and the so- 
called modern veto are not the same. The tribune could veto 
indeed. When a law was passed he could wholly or partially 
stop its operation, by the tribunitial auxilium, the personal 
prevention of the action of magistrates in particular cases. To 
this was added, at a later period, the intercessio, by which the 
tribune could prevent a decree of the senate or a rogation be- 
fore the comitia from becoming a law. The dispensatory power 
claimed by the Stuarts would have been the full veto power. 
The chief of the state in the United States or England, how- 
ever, has no such power. The law, so soon as it is law, says 
to every one : Hands off. What we call the veto power is in 
reality a power of an abnuent character, and ought to have been 
called the declinative. But this declinative is possessed in a 
much greater degree by each house against the other. To 
make a bill a law, the concurrence of three parties is required 
— that of the two houses and the executive, and this concur- 



202 ON CIVIL LIBERTY 

rence may be withheld as a matter of course, otherwise it 
would not be concurrence. 

It is a wise provision in our constitution which directs that 
a bill not having received the president's approval neverthe- 
less passes into a law if two-thirds of congress adhere to the 
bill. Many of our state constitutions do not require the con- 
currence of the executive. This is not felt in many cases as 
an evil, because the action of the states is limited ; but in my 
opinion it would be an evil day when the veto should be taken 
from the President of the United States. It would be the 
beginning of a state of things such as we daily observe with 
our South American neighbors. The American conditional 
veto is in a great measure a conciliatory principle with us, as 
the refusal of supplies is of an eminently conciliatory character 
in the British polity. 1 

The only case in which our executives have a real vetitive 
power is the case of pardon, and most unfortunately it is 
used in an alarming degree, against the supremacy of the law 
and the stability of right — both essential to civil liberty. I 
consider the indiscriminate pardoning, so frequent in many 
parts of the United States, one of the most hostile things, 
now at work in our country, to a perfect government of law. 
In the only case, therefore, in which we have a full veto power, 
we ought greatly to modify it. 2 



1 [The suspensive veto in Norway, which three successive Storthings by a ma- 
jority can make of no effect, deserves consideration, as avoiding some of the evils 
of our qualified veto.] 

2 I shall append a paper on pardoning — a subject which has become all-im- 
portant in the United States. 



AND SELF-GOVERNMENT. 



203 



CHAPTER XVIII. 

INDEPENDENCE OF THE JUDICIARY. THE LAW JUS, COMMON 

LAW. 

37. One of the main stays of civil liberty, and quite as im- 
portant as the representative principle, is that of which the 
independence of the judiciary forms a part, and which we shall 
call the independence or the freedom of the law — of jus and 
justice. 1 It is a great element of civil liberty and part of a 
real government of law, which in its totality has been developed 
by the Anglican tribe alone. It is this portion of freemen 
only, on the face of the earth, which enjoys it in its entirety. 

In the present case I do not take the term law in the sense 
in which it was used when we treated of the supremacy of the 
law. I apply it now to everything that may be said to belong 
to the wide department of justice. I use it in the sense in 
which the Anglican lawyer takes it when he says that an 
opinion, or decision, or act, is or is not law, or good law — an 
adaptation of the word peculiar to the English language. It 
is not the author's fault that Law must be taken in one and 
the same essay, in which philosophical accuracy may be ex- 
pected, in two different meanings. 

The word law has obtained this peculiar meaning in our 
language, otherwise so discriminating in terms appertaining 
to politics and public matters, chiefly for two reasons. The 
first is the serious inconvenience arising; from the fact that 



1 The lack of a proper word for jus, in the English language, induced me to 
use it on a few occasions in the Political Ethics. The Rev. Dr. W. Whewell, 
some years later, seems to have felt the same want, adopting in his work on the 
Elements of Morality, including Polity, London, 1845, tne word Jural, first used 
in the Political Ethics, where a note explains why I was compelled to form the 
word. 



204 0N CIVIL LIBERTY 

our tongue has not two terms for the two very distinct ideas 
which in Latin are designated by Lex and Jus, in French by 
Loi and Droit, in German by Gesetz and Recht; the second is 
the fact, of which every Anglican may be proud, that the 
English jus has developed itself as an independent organism, 
and continues to do so with undiminished vitality. It is based 
upon a common law, acknowledged to be above the crown in 
England, and to be the broad basis of all our own constitu- 
tions — a body of law and " practice," in the administration 
of justice, which has never been deadened by the superinduc- 
tion of a foreign and closed law, as was the case with the 
common law of those nations that received the civil law in a 
body as authority for all unsettled cases. The superinduction 
of the Latin language extinguished, in a manner not wholly 
dissimilar, the living common languages of many tribes, or 
dried up the sources of expansive and formative life contained 
in them. 

The independence of the judges is a term happily of old 
standing with all political philosophers who have written in 
our language ; but it will be seen that the independence of the 
judiciary, by which is meant generally a position of the judge 
independent of the executive or legislative, and chiefly his 
appointment for life, or immovability by the executive, and, 
frequently, the prohibition of a decrease or increase of his 
salary after his appointment has taken place — that this inde- 
pendence of the judiciary forms but a part of what I have been 
obliged to call the far more comprehensive Independence of 
the Law. 1 

The independence of the law, or the freedom of the jus, in 
the fullest and widest sense, requires a living common law, a 



1 When therefore I published a small work on this subject, during my visit to 
Germany, in 1848, I called it Die Unabhangigkeit der Justiz oder die Freiheit 
des Rechts, Heidelberg, 1848. Literally translated, this would be The Inde- 
pendence of Justice and Freedom of the Law. Justiz in German, however, 
does not mean the virtue justice, but the administration of justice ; and Recht 
means, in this connection,/^, not a single jus, but the body of rights and usages, 
laws and legal practice, of a people. 



AND SELF-GOVERNMENT. 2 0$ 

clear division of the judiciary from other powers, the public 
accusatorial process, the independence of the judge, the trial 
by jury, and an independent position of the advocate. These 
subjects will be treated in the order in which they have been 
enumerated here. 

A living common law is, as has been indicated, like a living 
common language, like a living common architecture, like a 
living common literature. It has the principle of its own 
organic vitality, and of formative as well as assimilative ex- 
pansion, within itself. It consists in the customs and usages 
of the people, the decisions which have been made accordingly 
in the course of administering justice itself, the principles 
which reason demands and practice applies to ever-varying 
circumstances, and the administration of justice which has 
developed itself gradually and steadily. It requires, there- 
fore, self-interpretation or interpretation by the judiciary itself, 
the principle of the precedent and " practice" acknowledged 
as of an authoritative character, and not merely winked at ; 
and, in general, it requires the non-interference of other 
branches of the government or any dictating power. The 
Roman law itself consisted of these elements, and was devel- 
oped in this manner so long as it was a living thing. 

The common law acknowledges statute or enacted law in 
the broadest sense, but it retains its own vitality even with 
reference to the lex scripta in this, that it decides by its own 
organism and upon its own principles on the interpretation of 
the statute when applied to concrete and complex cases. All 
that is pronounced in human language requires constant 
interpretation, except mathematics. 1 Even if the English law 
should be codified, as at this moment the question of codifica- 
tion has been brought before parliament, the living common 
law would lose as little of its own inherent vigor and expan- 
siveness as it has lost in Massachusetts or New York by the 



x Hence the peculiar power and the peculiar narrowness of the branch. I 
have treated of this subject, and the unceasing necessity of interpretation, at the 
beginning of my Principles of Interpretation and Construction in Law and 
Politics, Boston, 1839. 



206 ON CIVIL LIBERTY 

" Revised Statutes" of those states. The difference between 
such a code in England and the codes which have been pro- 
mulgated on the continent of Europe would always consist in 
this, that the English digest would have a retrospective char- 
acter. It would be the garnering of a crop ; but the living 
orchard is expected to bear new fruits, while it was the pro- 
nounced intention of the promulgators of continental codices to 
prevent interpretation, for which end it was ordained analogously 
to the rule of the civil law, that recourse should be had in all 
doubtful cases to the legislator, that is, to the emperor or king, 
or to the officer appointed by the monarch for that purpose. 1 

Judge Story has very clearly expressed what a code, with 
reference to the English law, ought to be. He says : " Not- 



1 I cannot avoid referring again to my work on the Principles of Interpretation 
and Construction in Law and Politics, where this subject is repeatedly treated 
of, as it forms one of vital importance in all law, liberty, politics, and self-govern- 
ment. I have given there instances of prohibited commenting, and even lec- 
turing, in the universities, on the codes. This is the pervading spirit of the civil 
law as it was adopted by modern nations. It is a necessary and combined con- 
sequence of the principle contained in the Justinian code itself, namely, that the 
emperor is the executive, legislator and all ; that, therefore, no self-development 
of the law, such as had indeed produced the Roman jus, could any longer be 
allowed ; and of the fact that the Roman law was adopted as a finished system 
from abroad. The principle of non-interpretation by the courts prevails for the 
same reasons in the canon law. I give the following as an interesting instance: 

The bull of Pope Pius IV., 26 January, 1564, sanctioning and proclaiming the 
canons and decrees of the Council of Trent, contains also the prohibition to 
publish interpretations and dissertations on these canons and decrees. The words 
of the bull, which correspond exactly to the authority reserved by government 
concerning the understanding of the law, where codes have been introduced 
and the common law principle is not acknowledged, are these : 

"Ad vitandam praeterea perversionem et confusionem, quae oriri posset, si 
unicuique liceret, prout ei liberet, in decreta Concilii commentaries et interpreta- 
tiones suas edere, Apostolica auctoritate inhibemus omnibus — ne quis sine auc- 
toritate nostra audeat ullos commentaries, glossas, admonitiones, scholia, ullumve 
interpretationis genus super ipsius Concilii decretis, quocunque modo, edere, aut 
quidquam quocunque nomine, etiam sub prsetexta majoris decretorum corrobora- 
tionis, aut executionis, above quaesito colore, statuere." 

The papal bull goes on to declare that if there be any obscurity in the decrees 
the doubter shall ascend to the place which the Lord has appointed, viz., the 
apostolic see, and that the pope will solve the doubts. 



AND SELF-GOVERNMENT. 2 0J 

withstanding all that is said to the contrary, I am a decided 
friend to codification, so as to fix in a text the law as it is, and 
ought to be, as far as it has gone, and leave new cases to 
furnish new doctrines as they arise and reduce these again at 
distant intervals into the text." 1 

Locke, on the other hand, expresses the view which is almost 
always taken by philosophers who stop short with theory and 
do not add the necessary considerations of the statesman and 
friend of practical liberty, when he proposed the following 
passage in the constitution he drew up for South Carolina : 
" Since multiplicity of comments as well as of laws have great 
inconvenience, and serve only to obscure and perplex, all 
manner of comments and expositions, on any part of these 
fundamental constitutions, or on any part of the common or 
statute laws of Carolina, are absolutely prohibited." 2 



1 Life and Letters of Judge Story, vol. i. p. 448. The necessity of proper 
codification has appeared more and more clearly to the English mind, since this 
work was first published, and many preparatory steps have been taken. In the 
month of August Lord Chancellor Cran worth presented a report to the lords, of 
which he said that, in the first place, a list had been prepared of all the statutes 
not obsolete, nor for temporary and local but for general purposes, which have 
been passed since Magna Charta. The number is 16,000; but, taking away 
5300 repealed or virtually repealed, a number besides those which relate to 
Scotland or Ireland exclusively, and 3900 which the commissioners have not 
determined on, there remain, say 2500 acts for consolidation; and these have 
been analyzed. As there is some difference of opinion as to the best mode of 
consolidation, specimens on different principles had been prepared; and one of 
these, a digest of the law of distress for rent, was in the report. Mr. Coode, 
he says, has completed a digest of the poor-laws. What Lord Cranworth then 
proposed was to see whether the whole of the provisions relating to one subject 
might not be put into one statute. Each of the commissioners had been re- 
quested to take a subject and frame a scheme of consolidation with that view. 

A very interesting speech on this and cognate topics was made in February, 
1856, in the house of commons, by Mr. Napier, attorney-general of Ireland, on 
the introduction of his motion : 

"That, in the opinion of this house, as a measure of administrative reform, 
provision should be made for an efficient and responsible department of public 
justice, with a view to secure the skilful preparation and proper structure of 
parliamentary bills, and promote the progressive amendment of the laws of the 
United Kingdom." 

2 Locke's Constitution for South Carolina, 1669, paragraph 80. 



208 ON CIVIL LIBERTY 

This is quite as strong as the Bavarian code or the pope's 
decree, mentioned in a previous note. The fact is simply 
this : on the one hand analyzing and systematizing are at- 
tributes of humanity, and development, growth, assimilation, 
and adaptation are the very elements of life. Man has to lay 
out his road between the two, and will, naturally, incline more 
to the one or the other according to the bias of his mind or 
the general course of reasoning common to his peculiar science 
or profession. 

If interpretation, which takes place when the general rule 
is applied to a real case, is not left to the law itself, the 
law ceases to have its own life, and the citizen ceases strictly 
to live under the law. He lives under the dictating or inter- 
fering power, because each practical case, that is, each time 
that the rule passes over from an abstraction into a reality, is 
subject to that power, be it, as it generally is, the executive 
or the legislative. This does not exclude what is called au- 
thentic interpretation, or interpretation by the legislature itself, 
for future cases. Accurately speaking, authentic interpreta- 
tion is no interpretation, but rather additional legislation. 
We would distinctly exclude, however, retrospective authentic 
interpretation ; for this amounts, indeed, to an application of 
the law by the legislature, and is incompatible with a true 
government of law. It is obvious that the same holds with 
reference to all power, whether monarchical or popular. The 
law must be the lord and our " earthly god," and not a man, 
a set of men, or the multitude. 

As to the principle of the precedent, it is one of the ele- 
ments of all development, contradistinguished from dictation 
and mere command. Everything that is a progressive con- 
tinuum requires the precedent. A precedent in law is an ascer- 
tained principle applied to a new class of cases, which in the 
variety of practical life has offered itself. It rests on law and 
reason, which is law itself. It is not absolute. It does not 
possess binding power merely as a fact, or as an occurrence. 
If that were the case, Anaxarchus would have been right in 
telling Alexander that as Dike was represented as seated by 



AND SELF-GOVERNMENT. 209 

the side of Zeus to show that all his decrees had the quality 
of justice, so a great king's doings must be considered to be 
right by himself and by other men. 1 Nor is a precedent un- 
changeable. It can be overruled. But, again, it must be done 
by the law itself, and that which upsets the precedent cannot 
otherwise than become, in the independent life of the law, 
precedent in turn. 2 

The continental lawyers have a great fear of the precedent, 
but they forget that their almost worshipped Roman law itself 
was built up by precedent. Indeed, they do not comprehend 
the nature of the precedent, its origin, and its power, as an 
element of a free jus. They frequently point to the fact that 
the most tyrannical acts of the Stuarts were founded upon 
real or presumed precedents, and that crown lawyers helped 
in the nefarious work ; but they forget that British liberty was 
also rescued from despotism in a great measure by lawyers 
resting on the common law. Nothing gave to the popular 
party more strength than the precedent. On this particular 
subject, and on the nature of the precedent and the distinction 
of the. legal from the executive precedent, as well as the emi- 
nent danger of regarding a mere fact as a precedent, I have 
fully treated in two other works. 3 The present work does not 
permit me to enter more fully on the subject, or to repeat what 
I have there said. A truth of the weightiest importance it 
remains, that liberty and steady progression require the prin- 
ciple of the precedent in all spheres. It is one of the roots 
with which the tree of liberty fastens in the soil of real life, 
and through which it receives the sap of fresh existence. It 
is the weapon by which interference is warded off. The prin- 
ciple of the precedent is eminently philosophical. The English 



1 Arrian, Anab., iv. § 10, 7. 

2 Dr. Greenleaf published, in Portland, Maine, 1821, A Collection of Cases 
Overruled, Doubted, or Limited in their Application, taken from American and 
English Reports. Several subsequent editions have been published, with addi- 
tions, for which Dr. Greenleaf, however, has declared himself irresponsible. 

3 In my Ethics, and especially in my Principles of Legal and Political Inter- 
pretation and Construction. 

14 



210 ON CIVIL LIBERTY 

constitution would not have developed itself without it. What 
is called the English constitution consists of the fundamentals 
of the British polity laid down in custom, precedent, decisions, 
and statutes; and the common law in it is a far greater portion 
than the statute law. The English constitution is chiefly a 
common law constitution, and this reflex of a continuous 
society in a continuous law is more truly "philosophical," than 
the theoretic and systematic but lifeless constitutions of recent 
France. 

Every idea has its caricature, and the more unfailingly so 
the more actively and practically the idea is working in real 
life. It is, therefore, natural that we should meet with cari- 
catures of the precedent especially in England, as the English 
have been obliged to build up slowly and gradually that system 
of liberty and the independence of the law, which we have 
carried over to this country in a body, and which we have 
farther developed. When we read that at every opening of a 
new parliament a committee of the commons proceeds, lan- 
tern in hand, to the cellar under the house, to see whether no 
modern Guy Fawkes has collected combustibles there for the 
purpose of exploding parliament, because the thing had been 
done under James I., we must acknowledge the procedure more 
pitiful, though far more innocent, than Alexander's dragging 
the body of the gallant Batis at the wheels of his chariot 
round the walls of Gaza, in order to follow the precedent of 
his progenitor Achilles. But this is caricature, and it is un- 
philosophical to point at the case in order to prove the futility 
or mischief of the precedent. It is a proper subject for Punch 
to exterminate such farces, not for us to discuss them, any 
more than to treat seriously the French publicist who, speak- 
ing of the intrigues of the legitimists, lately said that the elder 
Bourbons should remember that Louis Napoleon had created 
for himself a formidable precedent, in the spoliation of the 
Orleans branch. Nero's fiddle might at this rate legalize the 
sentimental burning of any capital. 

The precedent has been called judge-made law, and as such 
deprecated. A more correct term would be court-evolved 



AND SELF-GOVERNMENT. 211 

law. If the precedent is bad, let it be overruled by all means, 
or let the legislature regulate the matter by statute. Bacon's 
dictum, already quoted, that the worst of things is the apo- 
theosis of error, applies to the bad precedent as forcibly as to 
any other error ; but the difficulty is not avoided by simply 
disavowing the precedent. Some one must decide. Now, is it 
better that government or a "minister of justice" shall lay 
down a rule in the style of the civil law, or that the principle 
shall be decided in court by the whole organism established 
to give reality and practical life to justice, and in. the natural 
course of things ? 

Continental jurists, when they compare the civil law with the 
common law, always commit this error, that they merely com- 
pare the contents of the two great systems of law, on which I 
shall presently say a few words ; whilst they invariably forget 
to add to the comparisons this difference, that the civil law, 
where it now exists, has been introduced as a dead and foreign 
law ; it is a matter of learned study, of antiquity ; whereas the 
common law is a living, vigorous law of a living people. It is 
this that constitutes more than half its excellence ; and though 
we should have brought from England all else, our liberty, had 
we adopted the civil law, would have had a very precarious 
existence. Judge Story relates "as perfectly well authenti- 
cated, that President (John) Adams, when he was Vice-Presi- 
dent of the United States, and Blount's conspiracy was before 
the senate, and the question whether the common law was to 
be adopted was discussed before that body, emphatically ex- 
claimed, when all looked at him for his opinion as that of a 
great lawyer, that if he had ever imagined that the common 
law had not by the revolution become the law of the United 
States under the new government, he never would have drawn 
his sword in the contest. So dear to him were the great privi- 
leges which that law recognized and enforced." 2 

A common law, to be a real advantage to the people, must 
be a general law, and the judicial organism must contain that 



1 Page 299, vol. i., Life and Letters of Joseph Story. 



212 ON CIVIL LIBERTY 

organic arrangement by which confusion and consequent inse- 
curity are prevented. Without it the common law, as any other 
system of law, ceases proportionately to be a protection of the 
citizen ; while the gradual generalization of the law, in the re- 
spective countries occupied by our race, as well as the steady 
extension and internal growth of international law, forms one of 
the most important topics of that portion of our history which, 
for want of better terms, may be called the nationalization and 
uniformation of our race, in governments, languages, litera- 
ture, and law systems. 

The civil law excels the common law in some points. Where 
the relations of property are concerned, it reasons clearly and 
its language is admirable ; but as to personal rights, the free- 
dom of the citizen, the trial, the independence of the law, the 
principles of self-government, and the supremacy of the law, 
the common law is incomparably superior. 1 

Nor has the civil law remained without its influence ; but it 
never superseded the common law. The common law remained 
a living system, and it assimilated to itself parts of the civil 
law as it assimilates any other element. For instance, Judge 
Story, in one of his essays, says : " The doctrine of bailments, 
too, was almost struck out at a single heat by Lord Holt, 2 who 
had the good sense to incorporate into the English code that 



1 " The civil law, a law of wisdom but of servitude; the law of a great com- 
mercial empire, digested in the days of Justinian, and containing all the principles 
of justice and equity suited to the relations of men in society with each other; 
but a .law under which the head of government was ' Imperator Augustus, 
legibus solutus.' " — John Quincy Adams, seventh President of the United States, 
in a letter to Judge Story, page 20, vol. ii., Life and Letters of Judge Story. 

The young American reader is recommended to peruse a letter to a young 
friend, by Mr. Legare, first published in the National Intelligencer, in which he 
urges the study of the civil law as one of the best means of mental legal 
training. That distinguished advocate told the author that whenever he was 
peculiarly complimented on an argument in civil suits, or had gained a very 
difficult case, he could trace the reason to his having thoroughly studied the civil 
law in his younger clays in Europe. Mr. Legare also wrote an extensive article 
on Roman Law and Legislation in the Southern Review. 

2 The case of Coggs vs. Bernard, 2d ed. Raym. R. 909 — note by Judge Story. 



AND SELF-GOVERNMENT, 



213 



system which the text and the commentaries of the civil law 
had already built up on the continent of Europe." 1 

The common law is all the time expanding and improving. 
I have given a very interesting instance of this fact, in the law 
of whalers, which has developed itself among the hardy 
hunters of the Pacific, 2 and has been acknowledged, when the 
proper occasion offered itself, in the courts of Massachusetts. 3 

The idea of a common law, with its own inherent vitality 
and independence, is, as a matter of course, wholly disavowed 
by those who follow the French views, and who, as we have 
seen, strive above all for union of force, and who consider the 



1 Story's Miscellaneous Writings, p. 224. 

2 In a similar, though in a far less interesting way, I observe that a whole 
code has established itself for the extensive sale of books at auction in London. 
It is a real specimen of the genius of one part of common law. 

3 See article Common Law, in the Encyclopaedia Americana. It was written, 
as many others on subjects of law, by my lamented friend, Judge Story. An 
opportunity has never offered itself to me publicly to acknowledge the great 
obligation under which I am to that distinguished jurist for the assistance he 
most readily and cheerfully gave me in editing the Americana. I shall never 
forget the offer he made to contribute some articles when I complained of my 
embarrassment as to getting proper articles on the main subjects of law, for my 
work intended for the general reader. Many of them were sent from Washing- 
ton, while he was fully occupied with the important business of the supreme 
court. He himself made out the list of articles to be contributed by him, and I 
do not remember ever having been obliged to wait for one. The only condition 
this kind-hearted man made was that I should not publish the fact that he had 
contributed the articles in the work until some period subsequent to their appear- 
ance. They have met with much approbation, and I hope I am not guilty of 
indiscretion if I state here that another friend, a distinguished orator and 
lawyer, the Hon. William C. Preston, has repeatedly expressed his admiration 
of them. 

The contributions of Judge Story to the Americana " comprise more than 120 
pages, closely printed in double columns. But a higher interest than that grow- 
ing out of their intrinsic worth belongs to them. They were labors dedicated 
purely to friendship, and illustrate a generosity which is as beautiful as it is rare." 
To these words, copied from p. 27, vol. ii. of Life and Letters of Joseph Story, 
where a list of all his contributions may be found, I may add that Judge Story 
made his offer at a time when he to whom it was made was known to very few 
persons in this country, and had but lately arrived here ; and that Judge Story 
took at once the liveliest and most active interest in the whole enterprise, and 
contributed much to cheer on the stranger in his arduous task. 



214 



ON CIVIL LIBERTY 



essence of democracy to consist in absolute equality concen- 
trated in absolute dominion, whether of the majority, or of one 
to whom the majority has transferred the absolute power — the 
democratic Csesar. Those American writers, therefore, who 
take this Gallican or Rousseau's view of democracy, share with 
the French this hostility to the common law. It was rifest at 
the time of the French revolution, since which time I believe 
it may be affirmed that it has greatly subsided. Yet it sub- 
sists still, and is occasionally uttered with an energy which 
surprises those who believe that the severest lesson taught by 
the first half of the nineteenth century is, perhaps, that abso- 
lute democracy has no connection with liberty. 1 



1 Theory of Politics : An Inquiry into the Foundations of Governments, and 
the Causes and Progress of Political Revolutions. By Richard Hildreth, author 
of " The History of the United States of America," etc.; New York, 1853. In 
this work the reader will find the opinion maintained that the practical working 
of a democratic government in our own country is obstructed by several disturb- 
ing causes, of which the greatest is the common law — " a scheme directly hostile 
to the spirit of democracy," and therefore, "under an enlightened democratical 
government, entirely out of place." 



AND SELF-GOVERNMENT. 



215 



CHAPTER XIX. 

INDEPENDENCE OF JUS, SELF-DEVELOPMENT OF LAW, CONTINUED. 

ACCUSATORIAL AND INQUISITORIAL TRIALS. INDEPENDENCE 

OF THE JUDGE. 

38. The practice or usage of the administration of justice 
belongs of right to the development of that administration 
itself, — avowedly so, and not merely by indulgence or con- 
nivance. 1 

In countries in which this important principle is not acknowl- 
edged, certain changes, produced by " practice," were and are, 
nevertheless, winked at, and happily so, because legislation has 
neglected to make the necessary changes, and humanity will 
not be outraged. Thus, in German countries, practice had 
abolished the application of the torture and fearful punish- 
ments, demanded by positive law, long before they were abol- 
ished by law. But it was an exception only demanded by 
common sense and by a general feeling of humanity. 

The common law of the Anglican race, however, assigns 
the right of development to the courts. It is part and parcel 
of the common law. Innumerable instances, and of almost 
daily occurrence, might be given. 

The following instance is given here simply because the 
writer happens to think of it, and because it seems to be an 
apt illustration. 

When a court is directed to sit two weeks, and a jury, being 
summoned to act for the first week of the term, and having 



1 Lord Mansfield, in a note to a Scottish judge who had asked his advice as 
to the introduction of trial by jury in civil cases into Scotland, has this remark: 
" Great alterations in the course of the administration of justice ought to be 
sparingly made and by degrees, and rather by the court than by the legislature." 
Lord Campbell's Chief Justices of England, vol. ii. p. 554. 



2l6 ON CIVIL LIBERTY 

retired to consider their verdict before midnight of Saturday, 
in the first week, return into court after midnight, and before 
daylight of Sunday, shall or shall not their verdict be received 
and published ? Shall it be rejected on the ground that Sun- 
day is a dies nonjuridicus ? This question was lately decided 
in South Carolina, not by applying for information to a " minis- 
ter of justice," or " the emperor," as the civil law directs, but 
by itself, upon the principle of vital self-sufficiency, by inquiry 
into its own principles, and an examination of precedents in 
the whole range of English law, and of statute laws, if there 
were any exactly applying to the case under consideration. 1 

This principle of self-development is important likewise with 
reference to a clear division of the judiciary from other branches 
of the public power. The law is not independent, and conse- 
quently the citizen not free, where aught else than the admin- 
istration of justice belongs to the court, and where anything 
that belongs to the administration of justice is decided by any 
one but the courts ; where things are decided by aught else 
than the natural course of law, and where, as has been stated, 
interpretation or application belongs to any one else than to 
the judiciary. 2 Hence there ought to be no pressure from 
without, either by a Stuart sending for the judges to tamper 
with them, or to ask them how they would decide a certain 
case if brought before them, or by a multitude assuming the 
name of the people. No judge ought to give his opinion be- 
fore the practical case has come on and been discussed accord- 



1 The learned " opinion" of the court of errors was delivered by Judge Ward- 
law, Hiller vs. English, 4 Strobhart's Reports, Columbia, S. C, 1850. While I 
was writing this, the supreme court of Massachusetts decided that the " squeeze 
of the hand" of a dying person, unable to speak, but having been made aware of 
the fact that the pressure would be taken as an affirmative, may be taken as " a 
dying declaration," though with caution. — National Intelligencer, Washington, 
May 21, 1853. 

2 Even the Constitution of the French Republic of 1848 said, article 89 : 

" Conflicts of privileges and duties between the administrative and judicial au- 
thority shall be regulated by a special tribunal composed of members of the court 
of cassation and of counsellors of state, to be appointed, every three years, in 
equal number, by the respective bodies to which they belong. This tribunal 
shall be presided over by the minister of justice." 



AND SELF-GOVERNMENT. 



217 



ing to law, either to monarch, political party, or suitor. He 
is an integral part of the law, but only a part, which must not 
be disconnected from the law. There must not be what are 
called in France jiigements administratifs , nor any extraordi- 
nary or exceptional courts, as has been mentioned; no judg- 
ments by extraordinary commissions, nor any decisions by the 
executive regarding the application of the law. The following 
instance is here given, not because the case is of itself important, 
but because it exhibits the principle with perfect clearness, and 
because it refers to a royal proclamation — an executive act. 
The English government had published in 1852 a proclamation 
against the public appearance of Roman Catholics in their re- 
ligious vestments; and the well-known Father Newman asked 
the secretary for the home department whether this royal 
proclamation must be considered as directed also against the 
wearing of " cassocks and cloaks" in the streets of Birming- 
ham, where the Roman Catholics had been in the habit of ap- 
pearing thus, "under legal advice," for full four years. The 
answer of secretary Walpole, one of the ministers, was this : 

" I am to inform you, that her majesty's proclamation is 
directed against all violations of the 26th section of the statute 
10th George IV. c. 7, and that if you feel any difficulty in 
the construction of the enactment, your proper course will be 
to consult your legal adviser. The secretary of state would 
not be justified in pronouncing an opinion on the question 
submitted to him ; for if any doubt exists on the point, the 
decision of it must rest with the courts of law, and not with 
the government." J 

There is no country except ours and England where a simi- 
lar answer would, or indeed could, have been given. Every- 
where else it would have been called a destruction of the prin- 
ciple of unity in the government. We call it a small but choice 
cabinet specimen of a most noble principle, forming an element 
of our very politics. Nor must it be forgotten that it was a 
tory government which made this exclusively Anglican reply. 



1 The letter is dated June 24, 1852. — London Spectator, July 3, 1852. 



2i8 ON CIVIL LIBERTY 

The reader will remember the directly opposite principle de- 
clared in the bull of Pope Pius IV., quoted before, as well as 
Locke's provision in his constitution of South Carolina. 

39. The public accusatorial 1 trial is another element of the 
independence of the law, as it is one of the efficient protections 
of the citizen. By accusatorial process is understood here, not 
what is generally understood by the term of trial by accusation, 
(that is, individual accusation,) 2 but that penal trial which 
places the court wholly above the two parties in criminal mat- 
ters, as the judge is everywhere placed, at least theoretically 
so, in civil cases ; although the two parties be the prosecuting 
state or government on the one hand, and the indicted person 
on the other. The accusatorial trial is thus contradistinguished 
from the inquisitorial trial, which came into use through the 
canon law, and especially through the unhallowed witch-trials. 
In it, the judge inquires, investigates, in one word, is the pros- 
ecuting party as well as the judging, and in some cases he is 
even expected to be likewise the protecting party of the in- 
dicted prisoner, thus uniting a triad of functions within himself 
which amounts to a psychological incongruity. 3 

It may be said that the public accusatorial trial has prevailed 
or been aimed at by all free nations, modern and ancient. We, 
the English, the Netherlanders, the Norwegians, the Swedes, 
the French since the first revolution, 4 the Germans in the 



1 The trial by accusation has a distinct meaning in the English law ; still, I 
have adopted the term Accusatorial Trial, in conformity to continental lawyers. 
A distinct term in contradistinction to the Inquisitorial Trial is necessary, and I 
prefer Accusatorial to Litigious Trial, which I observe Mr. Stephen uses in an 
interesting paper on English Criminal Law in the collection of articles published 
from time to time by former students of the two English universities, Oxford and 
Cambridge, respectively. 

2 There was no public prosecutor in Rome. An individual appeared as ac- 
cuser, and formed throughout the trial the prosecuting party. See article Crim- 
inal Law, in the Encyclopaedia Americana. 

3 See Feuerbach on the Jury. 

4 Under the present absolutism, the trial is of course at the mercy of the ex- 
ecutive, if the government has any interest in the matter; that is, punishments 
are inflicted without trial, and certain offences are punished summarily, although 
punishable with severe visitation of the law. 



AND SELF-GOVERNMENT. 



219 



earlier times, the Greeks and Romans — all have or had it, but 
it has nowhere been carried out with that consistency which 
we find in the Anglican penal trial. 

The penal trial or procedure is quite as important as the 
criminal law itself, and with reference to protection, to liberty, 
to a pervading consciousness of manly rights, it is even more so. 
This is the chief reason which explains why the English, the 
freest nation of Europe, endured so long one of the worst and 
most unphilosophical bodies of criminal laws — so sanguinary 
in its character that the monstrosity came to pass, of calling 
all punishments not capital, secondary punishments, as if death 
were the current penal coin, and the rest of punishments merely 
the copper to make small " change." The English public ac- 
cusatorial process, since the expulsion of the Stuarts, contained 
great guarantees of public security, even while those deficien- 
cies yet existed which have been remedied of late, thanks to 
Sir Samuel Romilly and Sir Robert Peel. For a long time 
the English judge was the short bridge of fairness, such as even 
that was in earlier times, between the cruel treatment of pris- 
oners before and after the trial, for it was only in 1774 that, 
at the earnest solicitation of Howard, parliament passed an act 
according to which jailers should be paid from public funds, 
and not, as theretofore, by fees of the prisoners, so that per- 
sons found not guilty should no longer be returned to prison, 
there to. be kept until they could pay the jailer. 1 

We consider that the accusatorial procedure, carried out with 
consistency and good faith, requires that the accusation itself 
be not made by the executive, but upon information, by whom- 
soever made, through an act, which itself includes a guarantee 
against frivolous or oppressive accusation ; for, as has been 
stated, trial itself, though followed by acquittal, is a hardship. 
Hence the importance of a grand jury. The Constitution of 
the United States ordains that " no person shall be held to 



1 Such fearful inconsistencies are almost bewildering; but Woe to the penally 
indicted, was the word of the law on the whole continent. There are similarly 
glaring and cruel inconsistencies still existing in our proud race. 



220 ON CIVIL LIBERTY 

answer for a capital or otherwise infamous crime unless on a 
presentment or indictment of a grand jury." The French penal 
trial contains no such guarantee, but it has passed over into the 
fundamental laws of all our states. It is farther necessary 
that the whole trial be bona fide public and remain bona fide 
accusatorial. Hence there ought to be no secret examina- 
tions of the prisoner by the public prosecutor before the trial, 
the results of which are to be used at the trial, as this actually 
forms part of the French penal trial. On the other hand, the 
judge should remain, during the trial, mere judge, and never 
become inquirer or part of the prosecution, as this likewise is 
the case in France. Nor must the prisoner be asked to in- 
criminate himself. All this belongs to the inquisitorial trial. 
The indictment must be clear, and the prosecuting officer must 
not be allowed to influence the jury by an address before the 
witnesses are examined, nor be allowed to bring in irrelevant 
matter. Lastly, full scope must be given to counsel for the 
prisoner. In all these details most of the accusatorial trials, 
except the Anglican, are more or less, and some sadly, deficient. 

40. The independence of the law or administration of justice 
requires the independence of the judge. All the guarantees 
we have mentioned support the judge in his independence, 
and are requisite for it. He cannot be so without a distinct 
separation of the judiciary from the other branches of the 
government, without a living, self-sustaining jus, or without 
the accusatorial procedure. But more is necessary. 

The appointment, the duration in office, and the removal, 
must be so that the judge feels no dependence upon any one 
or anything, except the law itself. This ought to be the case 
at least in as high a degree as it is possible for human wisdom 
to make it, or for human frailty to carry out. 1 Where there 
is a pervading publicity in the political life, an independent 
bar and self-sustaining jus and administration of justice, with 
responsible ministers of the executive or a responsible chief 
magistrate, carefully limited in his power, there is probably as 



1 See " Federalist," No. lxxviii. and sequ. 



AND SELF-GOVERNMENT. 221 

little danger of having bad judges, in giving the appointing 
power to the executive, especially if, as is the case with us, the 
senate must confirm the appointment, as in any other mode of 
appointing — indeed, far less danger than in those other modes 
which so far have been adopted in most of our states. Where 
peculiar fitness, peculiar skill and learning, and peculiar apti- 
tude are requisite, it is for many psychological reasons best 
to throw the responsibility of appointing on a few or one, so 
that it be concentrated, provided these few or the one are made 
to feel by a proper organization that they are responsible to 
the public. It is unwise to give such appointments to irre- 
sponsible bodies, or to numerous bodies, which, according to 
the universal deception of a divided responsibility, are not apt 
to feel the requisite pressure of responsibility, and necessarily 
must act by groups or parties. If it be done, that hallowed 
character, a wise and upright judge — a type of humanity which 
antiquity and modern times, paganism, Mahometanism, the Old 
and New Testaments, and the most revered passages of civil 
history, have ever held as one of the highest and most worthy 
— soon fades away in the forgetfulness of one of the most im- 
portant elements of all that is right, honorable, and civilized. 1 



1 Hard as the task of recording the following occurrence may be, it is better 
that the distemper be known, so that its cure may become possible. In the year 
1857, after the Police Law had long been resisted by the mayor of the city of 
New York, and after the supreme court of the state had declared it constitu- 
tional, a convention of one of the largest parties was held in that state, in order 
to nominate proper candidates for the various offices to be filled by the approach- 
ing election. When the judge of the supreme court, who belonged to the same 
party, and who, on the bench, had decided for the constitutionality of the Police 
Law, came to be nominated, the nomination was opposed by the person who 
had been mayor of New York, in a public speech, on the avowed ground that 
judges had been made elective by the party, although he himself had been 
adverse to it; that therefore the judges had been drawn into the sphere of party 
politics. The party had voted against the Police Law, and the judge had de- 
clared it constitutional, therefore he ought not to be nominated for re-election. 
The worst of the Stuarts never said anything worse concerning judges, and the 
painful account has been given here to show to the younger students of this work 
how fearfully rapid the decline of national sentiment is. Not more than ten 
years ago, such sentiments, publicly avowed, would have created universal 



222 ON CIVIL LIBERTY 

Laws ought to be the result of mutually modifying com- 
promise ; many appointments ought not. Election in such 
cases by a large body would lead to few efficient and truly 
serviceable ambassadors, and it has long been settled by that 
nation which probably knows most about efficient appoint- 
ment of university professors, the Germans, that their appoint- 
ment by election, either by a numerous corporation or by the 
professors of a university themselves, ought to be discarded. 1 

If the appointment of judges ought not to be vested in legis- 
latures, far less ought the people at large to burden them- 
selves with the election of judges. The election of judges by 
the people themselves, which has now been established in 
many of the United States, is founded, in my opinion, on a 
radical error — the confusion of mistaking popular power alone 
for liberty, and the idea that the more the one is increased, in 
so much a higher degree will the other be enjoyed. As if all 
power, no matter what name be given to it, if it sways as 
power alone, were not absolutism, and had not the inherent 
tendency, natural to all power whatever, to increase in absorb- 
ing strength ! All despotic governments, whether the abso- 
lutism rests with an individual or the people, (meaning of 
course the majority,) strive to make the judiciary dependent 
upon themselves. Louis XIV. did it, Napoleon did it, and 
every absolute democracy has done it. All essential, practical 



abhorrence. May my younger readers remember that the curses pronounced on 
unjust judges extend to those who appoint judges known to be unjust, or adopt 
a system which must make them so; be they monarchs or the people — execra- 
tions and blessings make no distinction between them. That judges ought to 
judge by the law alone, has been often felt even by absolute monarchs. Frederic 
II. of Prussia wrote a letter to the supreme court of his kingdom, enjoining the 
members to be faithful to their oath, and to do justice in spite of royal demand. 
The court ordered the letter to be framed and hung up in its hall. Louis XII. 
of France, in his edict of 1499, concerning the parliaments or high courts of 
justice, ordained that the law should always be followed, in spite of royal orders, 
which, as the ordinance says, importunity may have wrung from the monarch. 

1 The remarks of that wise philosopher, Sir William Hamilton, on the elec- 
tion of professors, in his minor works, apply, so far as I remember them now, 
with equal force, and probably even with greater strength, to the election of 
judges. 



AND SELF-GOVERNMENT. 



223 



liberty, like all sterling law itself, loves the light of common 
sense and plain experience. All absolutism, if indeed we 
except the mere brutal despotism of the sword, which despises 
every question of right, loves mysticism — the mysticism of 
some divine right. The monarchical absolutists wrap them- 
selves in it, and the popular absolutists do the same. But 
there is no mystery about the word People. People means an 
aggregate of individuals to each of whom we deny any divine 
right, and to each of whom — I, you, and every one included — 
we justly ascribe frailties, failings, and the possibility of sub- 
ordinating our judgment and virtue to passion and vice. Each 
one of them separately stands in need of moderating and pro- 
tecting laws and constitutions, and all of them unitedly as 
much as the individual. Where the people are the first and 
chiefest source of all power, as is the case with us, the electing 
of judges, and especially their election for a limited time, is 
nothing less than an invasion of the necessary division of 
power, and the submission of the judiciary to the influence of 
the power-holder. It is therefore a diminution of liberty, for 
it is of the last importance to place the judge between the 
:hief power and the party, and to protect him as the inde- 
>endent, not indeed as the despotic, organ of the law. 

It has been repeated by some who, not long ago, urged an 
elective judiciary, that an independent judiciary may be neces- 
sary in order to stand between the crown and the people, but 
that these two parties do not exist with us, and that therefore 
:he judges ought to be dependent on the people, whose simple 
servants they are. Not to mention that the word people is 
ised in this fallacious argument, as it is often in other cases, 
for a mysterious unit which exists nowhere, it may suffice to 
;ay that the English judge does not stand between the crown 
md the people. The crown, opposite the people, is sufficiently 
weak. The English judge stands between the crown and the 
accused individual, while with us the judge stands between the 
people and the individual, which creates a far greater difficulty. 
To resist the crown is considered patriotic, heroic; to resist 
the people (and frequently, nay, in most excited cases, this 



224 0N CIVIL LIBERTY 

means only a loud or impassioned portion of them) is con- 
sidered unpatriotic, mean, and even treasonable. 

An independent judiciary is one of the most indispensable 
elements of self-government, for self-government always im- 
plies mutual restraint. It is one of the wisest acts in a per- 
fectly free people to establish the highest possible degree of 
judicial independence, while they only act as all common 
power acts, if they wish to retain absolute power. 1 

Those of our states which have of late given the appoint- 
ment of judges to popular elections, labor under a surprising 
inconsistency; for all those states, I believe, exclude judges 
from the legislature. They fear "political judges," yet make 
them elective. Now, everything electional within the state 
becomes necessarily, in time, political. If the physician of a 
hospital, the captain of a vessel, or the watchmaker to repair 
our timepieces, were elected by the people, they would, to a 
certainty, in most cases, be elected not according to their 
medical, nautical, or horological skill and trustworthiness, but 
on political grounds. There is nothing reproachful in this to 
the people at large. It is the natural course of things. Even 
members of the French Academy have been elected on polit- 
ical grounds, when the government has taken a deep interest 
in the election. 

The question whether judges ought to sit in the house of 
commons was recently before parliament. 2 There are many 
English authorities on the American side of the question, at 
least so far as the house of commons is concerned. Lords 
Brougham and Langdale, Sir Samuel Romilly and Mr. Curran, 
may be mentioned as such. On the other hand, Mr. Bentham 
was of opinion that there was so little legislative talent in 



1 In 1774 parliament passed an act making the justices of the supreme court of 
Massachusetts independent of the people for their salaries. The grand jurors 
refused to serve. Paul Revere was one of the grand jury. 

2 See Mr. Macaulay's /speech in the commons, June I, 1853, on a bill to ex- 
clude judges from the house of commons. The chief question was to exclude 
the vice-chancellor from a seat in the commons. Mr. Macaulay is decidedly in 
favor of letting judges sit in the commons. 



AND SELF-GOVERNMENT. 225 

the world that no place fits so well for legislative business as 
the bench, and that it was suicidal to exclude the judges. 
The questions we have to answer are these : Does experience 
teach us that judges, having a seat in the legislature, where 
they needs must belong to one or the other party, allow them- 
selves to be influenced on the bench ? In England, there are 
striking instances that, in modern times, they may resist their 
own political bias, in Eldon, Thurlow, Mansfield, and Hard- 
wicke. But this remark extends to common cases only. Were 
they, or would they have been, utterly unbiased in all those 
trials that may be called political ? The pervading character 
of self-government and independence of the law has certainly 
given to the English bench a traditional independence. But 
how long has this existed, and what times may not possibly 
recur ? It appears, throughout the Life and Correspondence 
of Justice Story, that so soon as he was elevated to the bench 
he not only avoided being mixed up with politics in any de- 
gree whatsoever, but even the mere semblance of it. He 
seems to have been peculiarly scrupulous on this point. 

The second question we must answer is this : How does the 
judge get into the legislature? Can he do so without elec- 
tioneering? The more popular a representative government 
is, the more necessary the immediate contact between the 
candidate and the constituents becomes. And who wishes to 
see the judge, that ought to be the independent oracle of the 
law, in this position ? 

Mr. Bentham's observation regarding the general unfitness 
of the world at large for legislative business, and the peculiar 
fitness of judges for it, requires also some modification. How 
is it with sanitary laws ? Few physicians sit in legislatures, 
and those that have a seat are not placed there because they 
are at the head of their profession. We must necessarily trust 
to the general influence under which a legislature legislates. 
As to the fitting of the bench for legislative business, it is un- 
doubtedly true with regard to a large class of that business ; but 
we must not forget that the judge is and ought to be a peculiar 
representative of conservatism ; which nevertheless unfits him, 

15 



226 ON CIVIL LIBERTY 

in a measure, for all that business which is of a peculiarly pro- 
gressive character. Almost all law reforms have originally 
been resisted by the bench. It is not in all cases to be re- 
gretted. The judges are the brakes which prevent the vehicle 
from descending too fast on an inclined plane ; but the retard- 
ing force must be overcome in many cases, however serviceable 
it may be that the action of overcoming the difficulty may have 
been modified by the very process. 

I cannot help believing, then, that upon the whole judges 
ought to be excluded from the legislature; they certainly 
ought to be so with us. To allow them a seat in concentrated 
governments, as in France, would be calamitous. But this 
reason is, a fortiori, one why judges ought not to be elected 
by the people. 

We are frequently asked whether the elective judiciary 
works badly. The answer is, that a ball rolls awhile from 
the first impulse given to it. So far, old judges have generally 
been elected under the new system ; and we would ask, on the 
other hand : Has the former system worked badly ? I believe, 
then, that elective judges are a departure from substantial 
civil liberty, because it is a departure from the all-important 
independence of the law. 

The foregoing paragraph was written in 1853 ; and I have 
now to add, in 1859, that a judiciary elected by the people 
seems to be, universally and unqualifiedly, considered a serious 
failure. I state this, conscientiously to record facts concerning 
so important a topic. The most attentive observation, exten- 
sive perusal of public journals, consultation of lawyers and 
statesmen, have not brought to my knowledge a single opinion 
in favor of an elective judiciary. Everywhere it seems to be 
acknowledged that it was introduced into our constitutions from 
no dissatisfaction with the existing system or with the judges, 
but simply to satisfy the desire of increasing the power of the 
power-holder — to be subservient to the sovereign; that in 
reality it does not increase the power of the people, since per- 
sons, if appointed by popular vote, are nominated by a small 
number of so-called leading politicians, and the people at large 



AND SELF-GOVERNMENT. 



227 



can discuss the matter as little as the ecclesia in the agora could 
discuss; that the confidence of the people in the judiciary has 
been lessened, and through it the confidence even in the jury 
system ; that if a possible increase of salary is believed to be 
capable of influencing the judges, for which reason it is pro- 
hibited by all our constitutions, it follows, a fortiori, that a re- 
election by the people, or the losing it, must influence the judge 
far more; that instances of want of independence have occurred 
in various states, and the lack of independence has especially 
and sadly interfered with our penal trials and the salutary 
operation of the law ; that it has in many cases elevated indi- 
viduals to the bench who had no standing among their fellow 
lawyers, and whom no governor would have dared to appoint, 
feeling his responsibility as a trustee, while the electing people 
are irresponsible, and that in several states it has actually oc- 
curred that candidates for judicial seats have been asked in 
the public journals how they mean to decide if certain questions 
(e.g., the constitutionality of the New York liquor law) should 
come before them, in the same way in which certain political 
questions are put to candidates for the legislature. 1 

It is necessary to appoint judges for a long period, and the 
best is probably for life, with a proper provision which prevents 
incapacity from old age. 2 The experience which is required, 
and the authority he must have, although unsupported by any 
material power, make this equally desirable, as well as the fact 
that the best legal talents cannot be obtained for the bench if 
the tenure amounts to a mere interruption of the business of 
the lawyer. 3 The constitution of the French republic of ii 



1 The report of the Reform Committee of the New York legislature reveals a 
state of things which reminds us of the worst state of Athens, while the Louisiana 
papers copied the most important portions, with strengthening commentaries and 
illustrations from their state. Numerous individuals, judges, and lawyers have 
publicly expressed their disapprobation. We trust so great an evil will soon be 
redressed. 

2 See Political Ethics, under the heads of Judge, Independence of the Judi- 
ciary. 

3 I would refer the reader, on all these subjects, to Judge Chambers's Speech 
on the Judicial Tenure, in the Maryland Convention, Baltimore, 1851. [The 



228 ON CIVIL LIBERTY 

so democratic in its character, decreed the tenure of judicial 
office to be for life. 1 

It is for a similar reason of public importance that the salary 
of the judges be liberal, which means that, combined with the 
honor attached to a seat on the bench, it be capable of com- 
manding the fairest legal talents. The judge must enjoy, as 
has been stated, proper independence ; but he is dependent, and 
in the worst degree so, if he is conscious that the best lawyers 
before him are superior to him in talent, experience, learning, 
and character. None but such inferior men can be obtained 
for an illiberal salary, according to the universal law that the 
laborer is worthy of his hire, and that he will seek to obtain 
this hire in the great market of labor and talent. Even the 
common consideration that every private individual expects 
that his affairs will be served best by an efficient clerk for a 
liberal hire, and not by a poorly-paid hireling whose incapacity 
can command no higher wages, should induce us to pay judges, 
as indeed every one who must be paid, and is worthy of being 
paid at all, with a liberality which equally avoids lavishness 
and penury. Liberal salaries are essential to a popular 
government. 

To make judges independent or remove from them the pos- 
sible suspicion of dependence, it has been ordered in the Con- 
stitution of the United States that the "judges of the supreme 
and inferior courts shall hold their offices during good be- 
havior, and shall at stated times receive for their services a 
compensation which shall not be diminished during their con- 
tinuance in office." This principle has been adopted in most, 
if not in all our constitutions ; many have added that it shall 
not be increased either, during continuance in office. 2 But 



evils pointed out by Dr. Lieber'are admitted and deprecated by multitudes, but 
hitherto there are no steps backward. In New York, the state which has suffered 
most from a judiciary elected by the people and on party grounds, a vigorous 
effort has lately (1873) been made to change the mode of election, without suc- 
cess. Perhaps if the whole bar of a state was united and strong in desiring such 
a change it could be effected.] 

1 This constitution will be found in the Appendix. 

2 When it has become necessary to increase the salary of judges, the difficulty 



AND SELF-GOVERNMENT. 



229 



what is the possible dependence feared from an increase or 
decrease of salary, compared to that unavoidable dependence 
which must be the consequence of short terms of office, and 
of appointment by election ? It will hardly be necessary to 
mention that a fixed salary, independent of fees and fines, is 
indispensable for the independence of the judge and the pro- 
tection of the citizen. Even common decency requires it. 
Don Miguel of Portugal made the judges who tried political 
offenders depend upon part of the fines and confiscations they 
decreed; and we * know what was done under James II. and 
Lord Jeffreys. The hounds receiving part of the hunted game 
suggest themselves at once. 

With a view of making the judiciary independent, the 
removal of judges from office has been justly taken out of the 
hands of the executive. The immovability of judges is an 
essential element of civil liberty. Neither the executive nor 
the sovereign himself ought to have the power of removing a 
judge. He can therefore be removed by impeachment only, 
and this requires, according to the Constitution of the United 
States, two-thirds of the votes of the senate. In some states 
they can be removed by two-thirds of the whole legislature. 1 

Although the principle of arbitration cannot be called a 
characteristic of liberty, for as a characteristic it belongs rather 
to the patriarchal government, and courts of arbitration may 
flourish in despotic states, it will be necessary to consider this 
topic in the present place. It is very possible that our people 
would more readily give up an elective judiciary, where it has 
been established, if the law or the state constitutions directed 
or admitted of regular courts of arbitration. Wherever they 
have been tried in modern times, they have been found of the 
greatest benefit to the people, for instance, in Prussia and 



has sometimes been avoided by the judges resigning, upon the understanding 
that, after the legislature shall have increased the salary, they should be re- 
appointed. 

1 It seems to me a strange anomaly that, as it would seem by a late resolution 
of the United States senate, the president has authority to remove judges in the 
" territories." 



230 



ON CIVIL LIBERTY 



Denmark. Great efforts are made in England, by such lead- 
ing men as Lord Brougham, to introduce them in that country 
of law. In England as well as in the United States the law 
admits indeed of arbitration, but a single arbitration, though 
acknowledged by law if certain prescribed conditions have 
been fulfilled, differs in effect, and the advantage resulting from 
it, from a court of arbitration. 

Where these courts now exist, the following are, I believe, 
their characteristics : 

The country is divided into certain arbitration districts, in 
each of which the people elect several judges of arbitration, so 
that the people may have a choice, because the whole business 
transacted by them is an affair of confidence ; 

Parties must agree to go to arbitration, and select the 
judge; 

They must commence business by handing in a written 
declaration that they will abide by the decision of the judge, 
without any appeal, and the decision of the judge has full 
force in all courts ; 

Going to arbitration is a purely voluntary matter ; 

Parties must state their own cases, and no pleaders for others, 
no lawyers, are admitted ; 

There is no jury ; 

The arbitration extends to civil cases only, as a matter of 
course ; 

The judges of arbitration are elected for a limited time ; 

The judge decides on the common principles of fairness; 

Great care is taken to establish, as the first step, that the 
parties come into court, truly and verily, of their own accord 
and free will. 

The chief objections to Lord Brougham's repeated propo- 
sitions to introduce courts of arbitration have been made by 
professional lawyers, namely, that parties ignorant of their full 
rights would expose themselves to great losses. The statistics 
of those countries where these peculiar courts exist seem to 
prove the contrary. The number of cases decided by them 
has been increasing from year to year, and is now, as well as 



AND SELF-GOVERNMENT. 



2 3 I 



the amount of property upon which they have decided, 
surprisingly large. Cases in which the disputed property 
amounted to several hundred thousand dollars have been taken 
before these courts, and it has repeatedly happened, in Prussia, 
that in a suit before the regular courts of law the settlement 
of portions of the suit has been taken, by common consent, 
to arbitration, and the suit at law has proceeded with the de- 
cision of the court of arbitration. It is remarkable that the 
amount of property at stake, thus taken out of the court of 
law to the court of arbitration, has sometimes been very large. 

The establishment of courts of arbitration has produced a 
signal decrease of litigation and diminution of expenses. 

Finally, it may be observed that the fundamental idea of 
courts of arbitration somewhat resembles, in one point, the 
principle upon which, originally at least, 1 the house of lords 
decided as the last court of appeal, — a principle which many 
of our states had imitated, by giving the last appeal to the state 
senates, and which, so far as my inquiry has led me to con- 
clude, produced beneficial results. The introduction of courts 
of arbitration, along with the abolition of elective judges, and 
especially of judges elected for a short term, would produce 
the best effects in our country. 2 



1 At present, when the house of lords sits as a court of appeal, none but the 
law lords are generally present. 

2 In some manufacturing districts on the continent of Europe, for instance in 
Rhenish Prussia, so called Manufactory Courts exist. They consist of elected 
employers and employed, and judge of all the minor difficulties which may arise 
between the employers and the employed out of their immediate relation to one 
another. The common question, for instance, whether the woven piece, returned 
by the weaver, contains all the material given to him, or whether it be returned 
in a perfect state, is adjudged by them. General satisfaction seems to prevail 
with these courts, whose German name is Fabrik-Gerichte. [Courts or councils 
somewhat like these have been introduced also into Great Britain.] 



232 ON CIVIL LIBERTY 



CHAPTER XX. 

INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. THE 

ADVOCATE. 

41. The judge cannot occupy a sufficiently independent 
position between the parties by the accusatorial proceeding 
alone. If there is not what may be called a division of the 
judicial labor, separating the rinding of guilt or innocence, or 
of the facts, from the presiding over the whole trial and the 
application as well as the pronouncing and expounding of the 
law, the judge must still be exposed to taking sides in the trial. 
This division of judicial labor is obtained by the institution of 
the jury. This, it seems to me, is one of the most essential 
advantages of this comprehensive, self-grown institution. It 
is likewise a guarantee of liberty in giving the people a parti- 
cipation in the administration of justice, without the ruin and 
horrors of an administration of justice by a multitude, as it 
was in Athens. The jury is moreover the best school of the 
citizen, both for teaching him his rights and how to protect 
them, and for practically teaching him the necessity of law and 
government. The jury, in this respect, is eminently conserva- 
tive. In this, as in many other respects, it is necessary that 
the institution of the jury exist for the civil trial as well as for 
the penal, and not, as in many countries, for the latter only. 
The necessity of the jury does not militate against the arbi- 
tration courts, which have proved, as has been stated, a great 
blessing in all countries in which they have been properly 
established, or against certain courts of minor importance 
which may be advantageously conducted without a jury. 1 

1 For the history of this institution in general, the reader is referred to William 
Forsyth, History of the Trial by Jury, London, 1852. 



AND SELF-GOVERNMENT. 233 

The results of trial by jury have occasionally been such that 
even in England and here, voices have been raised against it. 
Men feel the existing evil only ; they do not see those evils 
that would result a hundredfold from an opposite state of 
things. Nor are those, who feel irritated at some results of 
the trial by jury, acquainted with the operation of trials with- 
out jury. So is occasionally the publicity of trials highly 
inconvenient; yet should we desire secret trials ? Liberty, as 
we conceive it, can no more exist without the trial by jury — 
that " buttress of liberty," as Chatham called it, 1 and as our 
ancestors worshipped it — than without the representative sys- 
tem. But we must remember that in all spheres the exception 
is patent ; the continuous operation of the rule is latent. 2 

The Declaration of Independence specifies, as one of the 
reasons why this country was justified in severing itself from 
the mother-country, that Americans have been " deprived in 
many cases of the benefits of trial by jury." 

It may not be improper here to enumerate briefly all the 
advantages of so great an institution, whether they are directly 
connected with liberty or not. 



1 Lord Erskine, when he was raised to the peerage, adopted the words Trial 
by Jury, as the scroll of his coat of arms. 

2 The laxity now unfortunately so common in the administration and execu- 
tion of the laws ; the crying evil that in our large cities numerous idlers, of a 
low character, make their living, during court time, by being ready to serve as 
jurymen when called upon, of which they are now very sure, owing to the 
facility with which judges excuse citizens from serving ; the frequency of non- 
agreement and consequent new trials ; the length to which the doctrine is carried 
that juries are judges of law as well as fact ; and many other things, have induced 
several persons loudly to call for the abolition of the jury. They do not seem 
to know much of history, or they would know that courts without juries are not 
exempt from falling into abuses or from becoming actual nuisances. Let us 
imagine our present elective judges without jury: would that mend matters? The 
opposite is hardly ever the cure of an evil. A glutton would not take the right 
step of amendment by the resolution of starving himself to death. Our jury 
trials exhibit many deplorable facts, in the present time, owing to the general 
spirit of disorder ; but the administration of justice, it would seem, suffers far 
more from want of energy in the judges. Let us fervently hope that the recu- 
perative power which has been shown by modern nations, and by modern nations 
alone, will manifest itself also with us. At any rate, no good is done, when the 
ship of state is in danger, by cutting away the very ribs of the ship. 



234 0N CIVIL LIBERTY 

The trial by jury, then, if properly and intelligently ad- 
ministered, divides the labor of the administration of justice, 
and permits each part quietly to find the truth in the sphere 
assigned to it ; 

It allows the judge to stand, as the independent organ of 
the law, not only above the parties, hostilely arraigned against 
each other, but also above the whole practical case before the 
court ; 

It enables plain, common, and practical sense properly to 
admix itself with keen professional and scientific distinction, 
in each single case, and thus prevents the effect of that dispo- 
sition to sacrifice reality to attenuated theory, to which every 
individual is liable in his own profession and peculiar pursuit — 
the worship of the means, forgetting the end; 1 



1 And this is the reason that nearly all great reforms have worked their way 
from without, and from the non-professional to the professional, or from below 
upward. 

I beg to arrest the reader's attention for a moment on this topic. 

In all civilized countries it is acknowledged that there are some important 
cases, which on the one hand it is necessary to decide, for Mine and Thine are 
involved, and which, on the other hand, are not of a character that the lines of 
demarcation can be drawn with absolute distinctness, in a manner which would 
make it easy to apply the law; e.g., the cases which relate to the imitation of a 
part of a work of art, of a pattern, or the question of a bona fide extract from an 
author's work, wdiich, according to the Prussian copyright law, was decided by 
a jury of "experts," long before the general introduction of the jury in that 
country. A similar case is presented when an officer is accused of unofficer-like 
and ungentlemanly conduct. Now the question becomes: Are not these cases 
far more frequent than it is supposed in the countries where the trial by jury 
does not exist? Are not almost all complex cases such as require in a high 
degree strong common sense, the tact of practical life, together with the law, in 
order to be justly decided ? Are not perhaps the greater part of civil cases such ? 
The English and Americans seem to believe they are. They believe that close 
logical reasoning is indeed necessaiy in the application of the law, and they 
assign this to the law-officers, but they believe also that a high degree of plain 
good common sense, unshackled by technicalities, is necessary to decide whether, 
" upon the whole," " taken all in all," the individual case in hand is such as to 
bring it within the province of the specific law, with reference to which it is 
brought before the court, and they assign this part of the trial to the jury, that 
is, to non-professional citizens. The English, and the people of some American 
states, do not only follow this view in the first stage of a case, but, in order to 



AND SELF-GOVERNMENT. 235 

It makes a participation of the people in the administration 
of justice possible without having the serious evil of courts, 
consisting of multitudes or mobs, or the confusion of the 
branches of the administration of justice, of judges and triers; 

It obtains the great advantage of a mean of views of facts, 
regarding which Aristotle said that many persons are more 
just than one, although each of the many were less so than 
the one; without incurring the disadvantages and the injustice 
of vague multitudes ; 

It brings, in most cases, a degree of personal acquaintance 
with the parties, and frequently with the witnesses, to aid in 
deciding; 

It gives tfye people opportunities to ward off the inadmissi- 
ble and strained demands of the government ; * 

It is necessary for a complete accusatorial procedure ; 



avoid the evil of letting technicalities get the better of essential justice, of letting 
the minds of professional lawyers, whose very duty it is to train themselves in 
strict, uncompromising logic, decide complicated and important cases in the last 
resort, they allow an appeal from all the judges to the house of lords, or to the 
senate. 

It appears to me an important fact, which ought always to be remembered 
when the subject of trial by jury in general is discussed, that by the trial by jury 
the Anglican race endeavors, among other things, to insure the continuous and 
necessaiy admixture of common sense in the decision of cases; and who can 
deny that in all practical cases, in all controversies, in all disputes, and in all 
questions which require the application of general rules or principles to concrete 
cases, common sense is indispensable, that is, sound judgment, which avoids the 
Nimium ? Who will deny that every one is liable to have this tact and plain 
soundness of judgment impaired in that very line or sphere in which his calling 
has made it his duty to settle general principles, to find general rules, to defend 
general points? The grammarian, by profession, frequently, perhaps generally, 
writes pedantically and stiffly; the religious controversialist goes to extremes ; 
the philosopher, by profession, is apt to divide, distinguish, and classify beyond 
what reality warrants; the soldier, by profession, is apt to sacrifice advantages to 
his science. Dr. Sangrado is the caricature of the truth here maintained. 

The denial of the necessity of profound study and professional occupation 
would be as fanatical as the disregard of common sense would be supercilious 
and unphilosophical. Truth stands, in all spheres, emphatically in need of 
both. 

1 The whole history of the libel, down to Charles Fox's immortal bill, may serve 
as an illustration. 



236 ON CIVIL LIBERTY 

It makes the administration of justice a matter of the people, 
and awakens confidence ; 

It binds the citizen with increased public spirit to the 
government of his commonwealth, and gives him a constant 
and renewed share in one of the highest public affairs, the 
application of the abstract law to the reality of life — the 
administration of justice; 

It teaches law and liberty, order and rights, justice and 
government, and carries this knowledge over the land ; s it is 
the greatest practical school of free citizenship ; 

It throws a great part of the responsibility upon the people, 
and thus elevates the citizen while it legitimately strengthens 
the government; 

It does not only elevate the judge, but makes him a popular 
magistrate, looked up to with confidence and favor ; which is 
nowhere else the case in the same degree, and yet is of great 
importance, especially for liberty ; 

It is the great bulwark of liberty in monarchies against the 
crown ; 

It stands, in republics, as a committee of the people, between 
the accused and the people themselves, a more exacting king 
when excited than one that wears a crown ; 

It alone makes it possible to decide to the satisfaction of the 
public those cases which must be decided, and which, never- 
theless, do not lie within the strict limits of the positive law; 



1 Lord Chancellor Cranworth said, in February, 1853, in the house of lords: 
" There were many other subjects to be considered. Trial by judge instead of 
by jury had been eminently successful in the county courts; but, in attempting to 
extend this to cases tried in other courts, we must not lose sight of the fact that we 
should be taking a step towards unfitting for their duties those who are to send 
representatives to the other house of parliament, who are to perform municipal 
functions in towns, and who are to exercise a variety of those local jurisdictions 
which constitute in some sort in this country a system of self-government. It 
may be very dangerous to withdraw from them that duty of assisting in the ad- 
ministration of justice. Mechanics' schools may afford valuable instruction, but 
I doubt if there is any school that reads such practical lessons of wisdom, and 
tends so much to strengthen the mind, as to serve as a juryman in the adminis- 
tration of justice." 



AND SELF-GOVERNMENT. 237 

It alone makes it possible to reconcile, in some degree, old 
and cruel laws, if the legislature omits to abolish them, with 
a spirit of humanity, which the judge could never do without 
undermining the ground on which alone he can have a firm 
footing ; 

It is hardly possible to imagine a living, vigorous, and 
expanding common law without it ; 

It is with the representative system one of the greatest 
institutions which develop the love of the law, and without 
this love there can be no sovereignty of the law in the true 
sense ; 

It is part and parcel of the Anglican self-government ; 

It gives to the advocate that independent and honored 
position which the accusatorial process as well as liberty re- 
quires, and it is a school for those great advocates without 
which broad popular liberty does not exist. 

Mr. Hallam, speaking in his work on the Middle Ages of 
"the grand principle of the Saxon polity, the trial of facts 
by the country," says, " from this principle (except as to that 
preposterous relic of barbarism, the requirement of unanimity) 
may we never swerve — may we never be compelled in wish to 
swerve — by a contempt of their oaths in jurors, a disregard 
of the just limits of their trusts." To these latter words I 
shall only add, that the fact of the jury's being called by the 
law the country, and of the indicted person's saying that 
he will be tried by God and his country, are facts full of 
meaning, and expressive of a great part of the beauty and the 
advantages of the trial by jury. 1 There is, however, no 
mysterious efficacy inherent in this or any other institution, 
nor any peculiar property in the name. Juries must be well 
organized, and must conscientiously do their duty. They be- 
come, like all other guarantees of liberty, very dangerous in 
the hands of the government, when nothing but the form is 
left and the spirit of loyalty and of liberty is gone. A cor T 



1 On all these subjects connected with the jury I must refer to the Political 

Ethics. 



238 ON CIVIL LIBERTY 

rupt or facile jury is the most convenient agent for despotism, 
or a sure road to anarchy. 

The jury trial has been mentioned here as one of the guar- 
antees of liberty, and it might not be improper to add some 
remarks on the question whether the unanimous verdict ought 
to be retained, or whether a verdict as the result of two-thirds 
or a simple majority of jurors agreeing ought to be adopted. 
This is an important subject, occupying the serious attention 
of many persons. But, however important the subject may 
be, and connected as I believe it to be with the very continu- 
ance of the trial by jury as a wholesome institution, and with 
the supremacy of the law, it is one still so much debated that 
a proper discussion would far exceed the limits to which this 
work is restricted ; and the mere avowal that it is my firm 
conviction, after long observation and study, that the una- 
nimity principle ought to be given up, would be of no value. 1 
I beg, however, to add, as a fact at all events of interest to 
the student, that Locke was against the unanimity principle. 
His constitution for South Carolina has this provision : 
" Every jury shall consist of twelve men ; and it shall not be 
necessary they should all agree, but the verdict shall be 
according to the consent of the majority." 

The "duke's laws" in New York, generally ascribed to the 



1 My conviction has been much strengthened since the original writing of this 
work. The Scottish jury (consisting of fifteen members) decides by majority. 
Our continued failures of verdicts would cease. "Whenever the jury is out more 
than half an hour, it is a pretty sure sign that the unanimity is, after all, 'only one in 
form and not in truth. Perhaps most professional men adhere to the unanimity 
principle ; but reforms very rarely proceed from the profession, in any sphere. 
It was not the theologians of the pope from whom the Reformation proceeded. 
"We can add, however, high authority in favor of our opinion. In January, 1859, 
Lord Campbell, chief justice of England, declared in court, after the jury had 
pronounced an absurd verdict, which he declined accepting, that he intended to 
propose a bill, in parliament, for the purpose of adopting the majority principle in 
civil cases ; and while I was revising these pages, a very respectable petition, 
urged even by judges, to allow judges to decide in civil cases by the majority of 
jurymen, when they cannot agree on a unanimous verdict, was presented to the 
Massachusetts legislature. I consider, however, the principle of verdicts by two- 
thirds in penal cases even more important than in civil cases. 



AND SELF-GOVERNMENT. 239 

Lord Chancellor Clarendon, the father-in-law of the Duke of 
York, demanded seven jurors, and unanimity only in capital 
cases. 1 

It is, besides, well known that our number of twelve jury- 
men, and the principle of their unanimity, arose from the 
circumstance that in ancient times at least twelve of the 
compurgators were obliged to agree before a verdict would be 
given, and that compurgators were added until twelve of them 
agreed one way or the other. 2 

I conclude here my remarks on the institution of the jury, 
and pass over to the last element of the independence of the 
law — the independent position of the advocate. 

42. Where the inquisitorial trial exists, where the judiciary 
in general is not independent, and where the judges more or 
less feel themselves, and are universally considered, as govern- 
ment officers, it is in vain to look for independent advocates, 
as a class of men. Their whole position, especially where 
the trial is not public, prevents the development of this inde- 
pendence, and the consideration they have to take of their 
future career would soon check it where it might occasionally 
happen to spring forth. 3 



1 Judge Daly's Historical Sketch of the Judicial Tribunals of New York, New- 
York, 1855, page 53. 

2 Forsyth, History of the Trial by Jury. 

3 Feuerbach, in his Manual of the Common German Penal Law, 10th edition, 
I 623, says that in the inquisitorial proceeding we have to represent the judge to 
our minds as the representative of the offended state, inasmuch as it is his duty 
to see justice done for it according to the penal law ; as representative of the ac- 
cused, inasmuch as he is bound at the same time to find out everything on which 
innocence or a less degree of criminality can be founded ; and finally, as judge, 
inasmuch as he must decide upon the given facts. Why not add to this fearful 
triad the jailer, the executioner ? 

Although a " defensor" is appointed, it is difficult for him to do his work 
properly ; for in the German inquisitorial process the defence begins when the 
inquiring judge has finished, or the "acta" are closed, that is, when the written 
report of the judge is made. Now, a lawyer does not feel very free to attack the 
writing of a judge upon whom his advancement probably depends, even if any 
latitude were given to the advocate. Mr. Mittermaier, note d, § 14, of his 
Art of Defending, 2d edition, speaks openly of the great difficulty encountered 



240 ON CIVIL LIBERTY 

The independence of the advocate is important in many re- 
spects. The prisoner, in penal trials, ought to have counsel. 
Even Lord Jeffreys, who among judges is what Alexander VI. 
was among popes, declared it, as far back as the seventeenth 
century, a cruel anomaly that counsel were permitted in a case 
of a few shillings, but not in a case of life and death. But 
counsel of the prisoner can be of no avail if they do not feel 
themselves independent in a very high degree. This inde- 
pendence is necessary for the daily protection of the citizen's 
rights. It is important for a proper and sound development 
of the law; for it is not only the decisions of the judges which 
frequently settle the most weighty points and rights, but also 
the masterly arguments of the advocates ; and, lastly, it is 
important in all so-called political trials. 

May we never have reason to wish it otherwise ! The limits 
of the advocate, especially as counsel in criminal cases, and 
which doubtless form a subject connected with liberty itself, 
nevertheless belong more properly to political and especially 
to legal ethics. As such I have treated of them in the Polit- 
ical Ethics. I own, however, that, when writing that work, the 
topic had not acquired in my mind all the importance and 
distinctness which its farther pursuit, and the perusal of works 
on this important chapter of practical ethics, have produced. 
I am sorry to say that very few of these works or essays seem 
manfully to grapple with it and to put it upon solid ground. 
It is desirable that this should be done thoroughly and philo- 
sophically. This is the more necessary, as the loosest and 
vaguest notions on the rights of the advocate are entertained 



by the " defensor" in unveiling the imperfections of the acta which have been 
sent him, because he thereby offends his superior, upon whom his whole career 
may depend; and Mr. Voget, the defensor of the woman Gottfried, in Bremen, 
who had poisoned some thirty persons, fully indorses these remarks of Mr. Mit- 
termaier, in his work, The Poisoner, G. M. Gottfried, Bremen, 1830, (first di- 
vision, pp. 17 and 18.) He concludes his remarks with these words: "Who 
does not occasionally think of the passage, I Sam. 29 : 6 — Non inveni in te quid- 
quam mali, sed satrnpis non places," (or, as our version of the Bible has it: 
Nevertheless, the lords favor thee not.) 



AND SELF-GOVERNMENT. 24 1 

by many respectable men, and the most untenable opinions 
have been uttered by high authorities. 1 

In this work, however, all that I am permitted to do is to 
indicate the true position of the advocate in our Anglican 
system of justice, and to allude to the duties flowing from it. 

Most writers discuss " the time-honored usage of the pro- 
fession in advocating one side," and of saying all that can be 
said in defence of the prisoner. No one at all conversant with 
the subject has ever had any doubt upon this point. It is a 
necessary effect of the accusatorial procedure. Indeed, it forms 
an essential part of it. But the writers go on maintaining 
that therefore the advocate may, and indeed must, do and 
say for his client all that the latter would do and say for him- 
self, had he the requisite talent and knowledge. And here 
lies the error, moral as well as legal. 2 

No man is allowed to do wrong, for instance to tell an 
untruth, or to asperse the character of an innocent person, 
either in his own behalf or for another. The prisoner would 
do wrong in lying, and no one has a right to do it for him. 
The lawyer is no more freed from the moral law or the obliga- 
tion of truth than any other mortal, nor can he divest himself 
of his individuality any more than other men. If he lies, he 
lies as every other man, at his own individual peril. If, as 
Lord Brougham stated it, the only object of counsel is to free 
the prisoner, at whatever risk, why, then, not also do certain 
things for the prisoner which he would do were he free? 
Many an indicted murderer would make away with a danger- 



1 For instance, Lord Brougham's well-known assertion uttered at the trial of 
Queen Caroline — often commented upon, but never taken back or modified by 
the speaker, — p. 91, Legal and Political Hermeneutics. See also an article on 
License of Counsel in the January number, 1841, of Westminster Review. The 
case of Sir Arthur Pigott, attorney-general of the Duchy of Cornwall, stating in 
court, for the Prince of Wales, that he had never heard of bonds of the Dutch 
loan, which the prince and some of his brokers had made, has been referred to 
before. The list of shameful tricks — actual tricks — to which counsel have occa- 
sionally resorted in our courts, would require a large space. 

2 Consult Hortensius : an Historical View of the Office and Duties of an 
Advocate, by William Forsyth, London, 1853. 



242 



ON CIVIL LIBERTY 



ous witness, if the prison did not prevent him. Why, then, 
ought not the lawyer to do this for him ? Because it would 
be murder? And why not? If the advocate is to say and do 
all the prisoner would do and say for himself, irrespective of 
morality, the supposed case is more glaring, indeed, but in 
principle the same with many actual ones. The fact is, the 
rights of the advocate, or the defence of his speaking on one 
side, cannot be put on a worse foundation than by thus making 
him a part of the prisoner's individuality, or a substitute. Nor 
could there be a more degrading position than that of letting 
one's talent or knowledge for hire, no matter whether for just 
or unjust, moral or immoral purposes. Indeed, why should 
this knowledge for hire begin its appropriate operation during 
the trial only, if escape is the only object ? Why not try to foil 
the endeavors of the detective police ? Is it only because the 
retaining fee has not yet been paid, and that, so soon as it is in 
the advocate's hand, he has a right to say, with the ancient 
poet: I deem no speaking evil that results in gain? 1 This 
cannot be. All of us have learned to venerate Socrates, whom 
Lord Mansfield calls the greatest of lawyers, for having made 
victorious war on the sophists, and having established ethics 
on pure and dignified principles ; and now we are called upon 
to sanction everything, without reference to morality and truth, 
in an entire and highly privileged class, and in the perform- 
ance of the most sacred business of which political man has 
any knowledge. If lawyers insist upon this revolting exemp- 
tion from the eternal laws of truth and rectitude, they ought 
to consider that this will serve in the end as a suggestion to 
the people of returning to the Athenian court of the people. 

The true position of the advocate in the Anglican accusato- 
rial trial, and in a free and orderly country, is not one which 
would almost assimilate him to the " receiver." It is a far 
different one. Nearly in all free countries, but especially in 
all modern free countries, has the advocate assumed a promi- 
nent position. He is an important person as advocate, and as 



Ao/cw (j&v ovdev prjjia aiiv nepdet kcikov. 



AND SELF-GOVERNMENT. 



243 



belonging to that profession from which the people necessarily- 
must always take many of their most efficient law-makers, 
from which arise many of the greatest statesmen, — whatever 
the English prejudice, even of such men as Chatham, to the 
contrary may long have been, — and which has formed in free 
states many of their immortal orators. 1 



1 There was a time when diplomacy and dishonest subtlety were nearly 
synonymous — when it was discussed how signatures might be written so that 
after a number of years they would vanish. Since that time, diplomacy has 
signally improved. We are now living in an age in which a corresponding im- 
provement is manifestly going on in legal ethics. We discuss the pertinent topics 
at least, and public attention is alive. The following article, taken from the 
London Spectator, Sept. 3, 1853, may find an appropriate place in a note: 

" However little the Smyth case can have answered the purpose of the man 
who claimed the property, it will not be entirely without beneficial result, since 
it has put in a very strong light a moral which has not escaped the legal profes- 
sion. Some time ago it was argued that a barrister becomes completely the 
agent and advocate of his client, engaged solely to present all that may be said 
on the side of that client, and disengaged from any moral responsibility as to the 
merits of the case. This doctrine, however, although it was convenient for the 
consciences of professional men less sensitive than Romilly, could not be sus- 
tained entirely; and barristers have gone to the equally erroneous opposite 
extreme — that of throwing up a brief as soon as a grossly fraudulent character 
was exposed in their case. Mr. Bovill threw up his brief in the Smyth case, and 
in doing so, we think, violated the true principle upon which a barrister should 
act; a pi"inciple which has not been unrecognized by the profession. It is, that 
the barrister is engaged for the purpose of seeing that his client be treated accord- 
ing to law and in no other way ; that he have all the evidence that can be pro- 
cured and set forth for him ; that the evidence be taken according to rule and 
practice; that the judge charge the jury according to law and rule; in short, 
that the whole proceedings be regular and complete in all that is required on the 
part of the client. Acting on this principle, the barrister can retain his brief to 
th.2 last, as well as on the principle of absolute agency; but he is not required to 
be an accomplice in suborning false evidence, or in setting forth pleas that he 
knows to be fraudulent; nor is he bound to anticipate the judgment by a declara- 
tion of the verdict in the act of throwing up his brief. 

" This principle has been recognized so far that there is a prospect of its be- 
coming more generally adopted as the rule of the profession. But the Smyth 
case suggests to us that it may very properly be extended to the other half of 
the profession — the attorneys. They are bound to exercise discretion in their 
conduct with their clients, otherwise they become parties to conspiracy and fraud. 
Considering all the opportunities that a man in the profession has of discrimina- 
ting, it is difficult to find him thus placed and to acquit him either of an extraor- 



244 



ON CIVIL LIBERTY 



The advocate is part and parcel of the whole machinery of 
administering justice, as much so as the jury, the judge, or 
the prosecutor. He forms an integral part of the whole con- 
trivance called the trial ; and the only object of the trial is to 
find out legal truth so that justice may be administered. In 
this trial, it has been found most desirable to place the judge 
beyond the parties, to let both parties appear before him, and 
to let both parties say all they can say in their favor, so that 
the truth may be ascertained without the judge's taking part 
in the inquiry, and thus becoming personally interested in the 
conviction, or in either party. The advocate is essentially an 
amicus curiae ; he helps to find the truth, and for this purpose 
it is necessary that all that can be said in favor of his client 
or in mitigation of the law be stated ; because the opposite 
party does the opposite, and because the case as well as the 
law ought to be viewed from all sides, before a decision be 
made. The advocate ought not only to say all that his client 
might say had he the necessary skill and knowledge, but even 
more ; but the client or prisoner has no right to speak the 
untruth in his own behalf, nor has the lawyer the right to do 
it for him. 

Chief-Justice Hale severely reproves the misstating authori- 
ties and thus misleading the court ; but why should this be 
wrong, and the misstating of facts not? Many prisoners 
would certainly misstate authorities if they could. Trials are 
not established for lawyers to show their skill or to get their 
fees, nor for arraigned persons to escape. They are estab- 
lished as a means of ascertaining truth and dispensing jus- 
tice ; not to promote or aid injustice or immorality. The 
advocate's duty is, then, to say everything that possibly can 



dinary degree of dulness or of culpable knowledge. It is, for example, excess- 
ively difficult to understand how any professional man could see Smyth, hear 
him tell his lies — nay, take them down in writing in order to insert them in the 
brief — and not understand the whole character of the fraud. Now, no attorney 
would put himself into this position, however fraudulent his client might be, if 
he confined himself to the principle which we have mentioned as adopted by 
barristers." 



AND SELF-GOVERNMENT. 



245 



be said in favor of his case or client, even if he does not feel 
any strong reliance on his argument, because what appears to 
himself weak may not appear as such to other minds, or may 
contain some truth which will modify the result of the whole. 
But he is not allowed to use falsehood, nor to injure others. 
Allowing this to him would not be independence, but an arbi- 
trarily privileged position, tyrannical toward the rest of society. 1 
To allow tricks to a whole profession, or to claim them by law, 
seems monstrous. There is no separate decalogue for lawyers, 
any more than for king, partisan, or beadle. 

The lawyer is obliged, as was stated before, to find out 
everything that can be found in favor of the person who has 
intrusted himself to his protecting care, because the opposite 
will be done by the opposite party. He has no right to 
decline the defence of a person, which means the finding out 
for him all that fairly can be said in his favor, except indeed in 
very peculiar cases. Declining the defence beforehand would 
amount to a prejudging of the case ; and in the division of 
judicial labor every one ought to be defended. 2 The defence 

1 The famous case of Mr. Philips, now on the bench, when defending Cour- 
voisier, is treated at considerable length in Townsend's Modern State Trials, 
under the trial of Courvoisier. It must be allowed that the defence is not suc- 
cessful, though ingenious. On page 312 of vol. i. of that work, the reader will 
also find the titles of numerous writings bearing on the moral obligations of the 
advocate, to which may be added those! have mentioned in the notes appended 
to my remarks on the advocate in the 2d vol. of the Political 'Ethics. I also 
refer to pp. 59 and sequ. in my Character of the Gentleman, Charleston, S.C., 
1847. 

2 At the very moment that these pages are passing through the press, (in 1853,) 
a case has occurred in an English court, of a young man indicted for burgla- 
riously entering the room of some young woman. His counsel in the defence 
suggested that probably the young lady had given an appointment to the pris- 
oner. "That is not in the brief," cried the prisoner himself, and the court justly 
reprimanded the barrister. It ought to be added that in this case the barrister 
wrote a letter of submission to the court. This has not been done in other cases 
quite as bad in principle. Thus, another publicly reproved barrister insisted that 
he had done what the profession required when he had resorted to the following 
trick. He had subpoenaed the chief witness against his client, so that he could 
not appear, and then argued that the prosecutor must know his client to be 
innocent, else he would certainly have produced his witness, etc. 

Since this was written, the following case has occurred, (in Cincinnati, 1853.) 



246 ON CIVIL LIBERTY 

of possible innocence, not the defeat of justice, is the aim of 
counsel. 

Great advocates, such as Romilly, 1 have very distinctly 
pronounced themselves against that view which still seems the 
prevailing one among the lawyers ; and Dr. Thomas Arnold 
was so deeply impressed with the moral danger to which the 
profession of the law, at present, exposes its votary, that he 
used to persuade his pupils not to become lawyers ; while Mr. 
Bentham openly declared that no person could escape, and 
that even Romilly had not remained wholly untainted. 

It ought to be observed, however, that a more correct opinion 
on the obligations of the advocate seems to be fast gaining 
ground in England. At present it seems to be restricted to 
the public ; but the time will come when this opinion will reach 
the profession itself. Like almost all reforms, it comes from 
without, and will ultimately force an entrance into the courts 
and the inns. We are thus earnest in our desire of seeing 
correct views on this subject prevail, because we have so high 
an opinion of the importance of the advocate in a modern 
free polity. 2 



When the defence came on, three hundred witnesses were sworn. The prosecu- 
tion of course did not believe that its turn would come for a long time. But the 
defence only examined some four witnesses, and then declared it had done. The 
prosecution was not prepared to proceed, and asked for delay; but the court 
decided that the case could not be stopped. Thus the whole trial was upset, 
and a verdict of not guilty was found. Now, are such atrocities to be borne 
with? Does freedom consist in giving all possible protection to trickery? 

1 There is a very excellent passage on this topic in the reflections of Sir Samuel 
Romilly on himself and the good he might do should he be appointed lord 
chancellor, page 384 and sequ. of vol. iii. of his Memoirs, 2d ed., London, 1840. 

2 This was written in 1853. 



AND SELF-GOVERNMENT. 247 



CHAPTER XXL 



SELF-GOVERNMENT. 



The last constituent of our liberty that I shall mention is 
local and institutional self-government. 1 Many of the guaran- 



1 The history of this proud word is this : It was doubtless made in imitation of 
the Greek autonomy, and seems originally to have been used in a moral sense 
only. It is of frequent occurrence in the works of the divines who flourished in 
the sixteenth and seventeenth centuries. After that period it appears to have 
been dropped for a time. We find it in none of the English dictionaries, although 
a long list of words is given compounded with self, and among them many which 
are now wholly out of use ; for instance, Shakspeare's Self-sovereignty. In Dr. 
Worcester's Universal and Critical Dictionary, the word is marked with a star, 
which denotes that he has added it to Dr. Johnson's, and the authority given is 
Paley, who, to my certain knowledge, does not use it in his Political Philosophy, 
nor have several of my friends succeeded in finding it in any other part of his 
works, although diligent search has been made. [It is in Webster, ed. of 1848.] 

Whether the term was first used for political self-government in England or 
America I have not been able to ascertain. Richard Price, D.D., used it in a 
political sense in his Observations on the Nature of Civil Liberty, etc., 3d edition, 
London, 1776, although it does not clearly appear whether he means what we 
now designate by independence, or internal (domestic) self-government. Jeffer- 
son said, in 1798, that "the residuary rights are reserved to their (the American 
states') own self -government." The term is now freely used both in England 
and America. In the former countiy we find a book on Local Self-government; 
in ours, Daniel Webster said, on May the 22d, 1852, in his Faneuil Hall speech : 
"But I say to you and to our whole country, and to all the crowned heads and 
aristocratic powers and feudal systems that exist, that it is to self-government, the 
great principle of popular representation and administration — the system that lets 
in all to participate in the counsels that are to assign the good or evil to all — that 
we may owe what we are and what we hope to be." 

Earl Derby, when premier, said, in the house of lords, that the officers sent 
from abroad to assist in the funeral of the Duke of Wellington would " bear wit- 
ness back to their own country how safely and to what extent a people might be 
relied upon in whom the strongest hold of their government was their own rever- 
ence and respect for the free institutions of their country, and the principles of 
popular self-government controlled and modified by constitutional monarchy." 



248 ON CIVIL LIBERTY 

tees of individual liberty which have been mentioned receive 
their true import in a pervading system of self-government, 
and on the other hand are its refreshing springs. Individual 
liberty consists, in a great measure, in politically acknowledged 
self-reliance, and self-government is the sanction of self-reliance 
and self-determination in the various minor and larger circles 
in which government acts and of which it consists. Without 
local self-government, in other words, self-government con- 
sistently carried out and applied to the realities of life, and not 
remaining a mere general theory, there is no real self-govern- 
ment according to Anglican views and feelings. Self-govern- 
ment is founded on the willingness of the people to take care 
of their own affairs, and the absence of that disposition which 
looks to the general government for everything ; as well as on 



In one word, self-government is now largely used on both sides of the Atlantic, 
in a political sense. 

This modern use of the word is no innovation, as it was no innovation when 
St. Paul used the old Greek word rc'iong in the vastly expanded sense of Christian 
faith. Ideas must be designated. The innovation was Christianity itself, not 
the use of the word to designate an idea greater than Pistis could have signified 
before. 

That self-government in politics is always applied by the English-speaking 
race for the self-government of the people or of an institution, — in other words, 
that self has in this sense a reflective meaning, — is as natural as the fact itself that 
the word has come, in course of time, to be applied to political government, 
simply because we must express the idea of a people or a part of a people who 
govern themselves and are not governed by some one else. 

Self-government belongs to the Anglican race, and the English word is used 
even by foreigners. A German and a French statesman, both distinguished in 
literature and politics, used not long ago the English word in conversations in 
their own languages with me. 

Donaldson's Greek Dictionaiy renders uvTOvopia by self-government. 

The word self, or its corresponding term in other languages, may have a 
reflective sense, as in self-murder, or it may have a merely emphatic or exclusive 
meaning, ipse, he himself. Hence the fact that the Emperor of Russia calls him- 
self autocrat of all the Russias, (self-ruler, himself and alone the ruler,) and we 
use the corresponding word self-government for the opposite, the government in 
which the ruling is left to the ruled. The old English self-sovereign is the exact 
rendering of autocrat. The Germans use the word Selbst-Verlag, i.e., sale of the 
book by the author himself. German wine-shops in New York have frequently 
on their signs, in English, the ludicrous words Self- Imported Wines. 



AND SELF-GOVERNMENT. 



249 



the willingness in each to let others take care of their own 
affairs. It cannot exist where the general principle of inter- 
ference prevails, that is, the general disposition in the executive 
and administration to do all it possibly can do, and to substi- 
tute its action for individual or minor activity and for self- 
reliance. Self-government is the corollary of liberty. 

So far we have chiefly spoken of that part of liberty which 
consists in checks, except indeed when we treated of repre- 
sentative legislatures ; self-government may be said to be 
liberty in action. It requires a pervading conviction through- 
out the whole community that government, and especially the 
executive and administrative branch, should do nothing but 
what it necessarily must do, and which cannot, or ought not, 
or will not be done by self-action; and that, moreover, it should 
allow matters to grow and develop themselves. Self-govern- 
ment implies self-institution, not only at the first setting out 
of government, but as a permanent principle of political life. 
In a pervading self-government, the formative action of the 
citizens is the rule ; the general action of the government 
is the exception, and only an aid. The common action of 
government in this system is not originative, but regulative 
and moderative, or conciliative and adjusting. Self-govern- 
ment, therefore, transacts by far the greater bulk of all public 
business through citizens, who, even while clad with authority, 
remain essentially and strictly citizens, and parts of the people. 
It does not create or tolerate a vast hierarchy of officers, form- 
ing a class of mandarins for themselves, and acting as though 
they formed and were the state, and the people only the sub- 
stratum on which the state is founded, similar to the view 
that the church consists of the hierarchy of priests and that 
the laity are only the ground on which it stands. 

A pervading self-government, in the Anglican sense, is 
organic. It does not consist in the mere negation of power, 
which would be absurd, for all government implies power, 
authority on the one hand and obedience on the other ; nor 
does it consist in mere absence of action, as little as the 
mere absence of censorship in China is liberty of the press. 



250 ON CIVIL LIBERTY 

It consists in organs of combined self-action, in institutions, 
and in a systematic connection of these institutions. It is 
therefore the opposite at once of a disintegration of society 
into individual, dismembered and disjunctive independencies, 
and of despotism, whether this consist in the satrap despotism 
of the East, (in which the pacha or satrap embodies indeed 
the general principle of unfreedom in relation to his superior, 
but is a miniature despot or sultan to all below him,) or 
whether it consist in the centralized despotism resting on a 
dense and thoroughly systematized hierarchy of officials, as 
in China or in the European despotic countries. Anglican 
self-government differs in principle from the sej unction into 
which ultimately the government of the Netherlands lapsed : 
and it is equally far from popular absolutism, in which the 
majority is the absolute despot. The majority may shift, in- 
deed, in popular absolutism, but the principle does not, and the 
whole can only be called a mutually tyrannizing .society, not 
a self-government. An American orator of note has lately 
called self-government a people sitting in committee of the 
whole. It is a happy expression of what he conceives self- 
government to be. We understand at once what he means ; 
but what he means is the Athenian market democracy, in its 
worst time, or, as a French writer has expressed it, Le peuple- 
empereur, the people-despot. It is, in fact, one of the \Oppo- 
sites of self-government, as much so as the one expressed 
in the favorite saying of Napoleon I.: "Everything for the 
people, nothing by the people." Self-government means 
Everything for the people, and by the people, considered as 
the totality of organic institutions, constantly evolving in their 
character, as all organic life is, but not a dictatorial multitude. 
Dictating is the rule of the army, not of liberty ; it is the 
destruction of individuality. But liberty, as we have seen, 
consists in a great measure in protection of individuality. 

While Napoleon I. thus epigrammatically expressed the 
essence of French centralization, 1 his chief antagonist, William 



1 As to the first part of this imperial dictum — tout pour le peuple — we know- 
very well how difficult it is to know what is for the people, without institutional 



AND SELF-GOVERNMENT. 25 1 

Pitt, even the tory premier, could not help becoming the organ 
of Anglican self-government, as appears from the anecdote 
which I relate in full as it was lately given to the public, 
because the indorsement by the uncompromising soldier gives 
it additional meaning : 

"A day or two before the death of the Duke of Wellington, 
referring to the subject of civic feasts, he told an incident in 
the life of Pitt which is worth recording. The last public 
dinner which Pitt attended was at the Mansion-house ; when 
his health was proposed as the savior of his country. The 
duke expressed his admiration of Pitt's speech in reply; which 
was, in substance, that the country had saved herself by her 
own exertions, and that every other country might do the 
same by following her example." 1 

Self-government is in its nature the opposite to political 
apathy and that moral torpidity or social indifference which is 
sure to give free play to absolutism, or else to dissolve the 
whole polity. We have a fearful instance in the later Roman 
empire. It draws its strength from self-reliance, as has been 
stated, and it promotes it in turn ; it cannot exist where there 
is not in each a disposition and manliness of character will- 
ing and able t'o acknowledge it in others. Nothing strikes 
an observer, accustomed to Anglican self-government, more 
strongly in France than the constant desire and tendency 
even in the French democracy to interfere with all things 
and actions and to leave nothing to self-development. Self- 
government requires politically, in bodies, that self-rule which 
moral self-government requires of the individual — the readi- 
ness of resigning the use of power which we may possess, 



indexes of public opinion, and how easy it is, even for the wisest and the best, 
to mistake and substitute individual, family, and class interests, and passions, for 
the wants of the people. This, indeed, constitutes one of the inherent and 
greatest difficulties of monarchical despotism. A benevolent Eastern despot 
could not have said it, for there is no people, politically speaking, in Asia; and 
for a European ruler it was either hypocritical, or showed that Napoleon was 
ignorant of the drift of modern civilization, of which political development forms 
so large a portion. 

1 London Spectator of September 18, 1852. 



252 ON CIVIL LIBERTY 

quite as often as using it. Yet it would be a great mistake to 
suppose that self-government implies weakness. Absolutism 
is weak. It can summon great strength upon certain occa- 
sions, as all concentration can ; but it is no school of strength 
or character ; nor is a certain concentration by any means 
foreign to self-government, but it is not left in the hands of 
the executive to use it arbitrarily. Nor is it maintained that 
self-government necessarily leads in each single case soonest 
and most directly to a desired end, especially when this belongs 
to the physical welfare of the people ; nor that absolute and 
centralized governments may not occasionally perform brilliant 
deeds, or carry out sudden improvements on a vast scale 
which it may not be in the power of self-governments so 
rapidly to execute. But the main question for the freeman is, 
which is the most befitting to man in his nobler state ; which 
produces the best and most lasting results upon the whole 
and in the long run ; which effects the greatest stability and 
continuity of development ; in which is more action of sound 
and healthful life and not of feverish, paroxysms ; which pos- 
sesses the greatest tenacity ? Is it the brilliant exploits which 
constitute the grandeur of nations if surveyed in history, and 
are there not many brilliant actions peculiar to self-government 
and denied to centralized absolutism ? 

In history at large, we observe that the material and bril- 
liant influence of states is frequently in accordance with their 
size and the concentration of their governments, but that the 
lasting and essential influence exercised by states is in propor- 
tion to their vigorous self-government. This influence, how- 
ever, is less visible, and requires analyzing investigation to be 
discovered and laid open. The influence of England on the 
whole progress of our race has been far greater than that of 
France, but far less brilliant than that of the period of Louis 
XIV. A similar observation may be made in all spheres. 
The influence which the mind of Aristotle has had on our race 
far surpasses the effects of all the brilliant exploits of his im- 
perial pupil ; yet thousands learn the name of Alexander the 
Great, even in our primary schools, who never hear of Aris- 



AND SELF-GOVERNMENT. 253 

totle. Nature herself furnishes man with illustrations of this 
fact. The organic life which silently pervades the whole with 
a creative power, is not readily seen, while convulsions, erup- 
tions, and startling phenomena attract the attention, or cause 
at least the wonder of the least observing. 

Where self-government does not exist, the people are always 
exposed to the danger that the end of government is lost 
sight of, and that governments assume themselves as their 
own ends, sometimes under the name of the country, some- 
times under the name of the ruling house. Where self- 
government exists, a somewhat similar danger presents itself in 
political parties. They frequently assume that they themselves 
are the end and object, and forget that they can stand on defen- 
sible ground only if they subserve the country. Man is always 
exposed to the danger of substituting the means for the ends. 
The variations we might make on the ancient Propter vitam 
vivendi perdere causas, with perfect justice, are indeed endless. 1 

Napoleon I., who well knew the character of absolute 
government and pursued it as the great end of his life, never- 
theless speaks of the " impuissance de la force" — the impo- 
tency of power. 2 He felt, on his imperial throne, which on 
another and public occasion he called wood and velvet unless* 
occupied by him, and which was but another wording of Louis 
XIV.'s L'etat c'est moi, that which all sultans have felt when 
their janizaries deposed them — he felt that of all governments 
the czar-government is the most precarious. He felt what, 



1 Do not all the following, and many more, find their daily or historical 
applications : Propter imperium imperandi perdere causas ; Propter ecclesiam 
ecclesiae perdere causas; Propter legem legis perdere causas; Propter argumenta- 
tionem argumenti perdere causas; Propter dictionem dicendi perdere causas? 

2 The Memoirs of Count Miot, the first volumes of which have lately been 
published, show more in detail than any other work with what eagerness, con- 
sistency, and boldness Napoleon I. endeavored, step by step, to break down 
every guarantee of liberty which the French people had established. He did 
this so soon as he had been made consul for life, and succeeded, through the 
newly-established senate and council of state, in nearly all cases. When he 
attempted to abolish the trial by jury, supported as he was by his high law-officers, 
the institution was saved by a few men, showing, on that occasion, a degree of 
resolution which had become rare, even at so early a period. 



254 0N CIVIL LIBERTY 

with other important truths, Mr. de Tocqueville had the bold- 
ness to tell the national assembly, in a carefully considered 
report of a committee, in 185 1, when he said : 

" That people, of all nations in the whole world, which has 
indeed overthrown its government more frequently than any 
other, has, nevertheless, the habit, and feels more than any 
other the necessity, of being ruled. 

" The nations which have a federal existence, even those 
which, without having divided the sovereignty, possess an 
aristocracy, or who enjoy provincial liberties deeply rooted in 
their traditions — these nations are able to exist a long time 
with a feeble government, and even to support, for a certain 
period, the complete absence of a government. Each part of 
the people has its own life, which permits society to support 
itself for some time when the general life is suspended. But 
are we one of those nations ? Have we not centralized all 
matters, and thus created of all governments that which, in- 
deed, it is the easiest to upset, but with which it is at the same 
time the most difficult to dispense for a moment?" 1 



1 Mr. de Tocqueville made this report on the 8th of July, in the name of the 
majority of that committee, to which had been referred several propositions 
relating to a revision of the constitution. It was the time when the constitutional 
term of the president drew to its end, and the desire of annulling the ineligibility 
for a second term became manifest. It was the feverish time that preceded the 
second of December, destined to become another of the many commentaries on 
the facility with which governments founded upon centralization are upset, by 
able conspiracies or by a terror-striking surprise, such as the revolution of 
February had been, when the Orleans dynasty was expelled, and another proof 
how easy it is in such states to obtain an acquiescent majority or its semblance. 

In connection with the foregoing, I must ask leave to add the concluding 
remarks of the Ancien Regime, published since the first edition of Civil Liberty 
was issued. I know of no passage in modern literature which reminds the 
reader so directly of the energy and gloom of Tacitus. I quote from Mr. Bon- 
ner's translation, New York, 1856, and wish to say that the whole work of Mr. 
de Tocqueville is a continued historical commentary of all that is said in the 
present work on Gallican political tendencies. 

" When I examine that nation (the French) in itself, I cannot help thinking it 
is more extraordinary than any of the events of its history. Did there ever 
appear on the earth another nation so fertile in contrasts, so extreme in its acts — 
more under the dominion of feeling, less ruled by principle ; always better or 
worse than was anticipated — now below the level of humanity, now far above; 



AND SELF-GOVERNMENT. 255 

With this extract I conclude, for the present, my remarks 
on self-government, and with them the enumeration of the 
guarantees and institutions which characterize, and in their 
aggregate constitute, Anglican liberty. 

They prevail more or less developed wherever the Anglican 
race has spread and formed governments or established dis- 
tinct polities. Yet, as each of them may be carried out with 
peculiar consistency, or is subject to be developed under the 
influence of additional circumstances, or as a peculiar character 
may be given to the expansion of the one or the other element, 
it is a natural consequence that the system of guarantees which 
we have called Anglican presents itself in various forms. All 
the broad Anglican principles, as they have been stated, are 
necessary to us, but there is, nevertheless, that which we can 
call American liberty — a development of Anglican liberty pecu- 
liar to ourselves. Those features which may, perhaps, be called 
the most characteristic are given in the following chapter. 



a people so unchangeable in its leading features, that it may be recognized by 
portraits drawn two or three thousand years ago, and yet so fickle in its daily 
opinions and tastes that it becomes at last a mystery to itself, and is as much 
astonished as strangers at the sight of what it has done; naturally fond of home 
and routine, yet, once driven forth and forced to adopt new customs, ready to 
carry principles to any lengths, and to dare anything; indocile by disposition, 
but better pleased with the arbitrary and even violent rule of a sovereign than 
with a free and regular government under its chief citizens ; now fixed in hos- 
tility to subjection of any kind, now so passionately wedded to servitude that 
nations made to serve cannot vie with it ; led by a thread so long as no word 
of resistance is spoken, wholly ungovernable when the standard of revolt has 
been raised — thus always deceiving its masters, who fear it too much or too little ; 
never so free that it cannot be subjugated, nor so kept down that it cannot break 
the yoke; qualified for every pursuit, but excelling in nothing but war; more 
prone to worship chance, force, success, eclat, noise, than real glory; endowed 
with more heroism than virtue, more genius than common sense; better adapted 
for the conception of grand designs than the accomplishment of great enterprises; 
the most brilliant and the most dangerous nation of Europe, and the one that is 
surest to inspire admiration, hatred, terror, or pity, but never indifference ? 

" No nation but such a one as this could give birth to a revolution so sudden, 
so radical, so impetuous in its course, and yet so full of missteps, contradictory 
facts, and conflicting examples. The French could not have done it but for the 
reasons I have alleged ; but, it must be admitted, even these reasons would not 
suffice to explain such a revolution in any country but France." 



256 ON CIVIL LIBERTY 



CHAPTER XXII. 



AMERICAN LIBERTY. 



American liberty belongs to the great division of Anglican 
liberty. It is founded upon the checks, guarantees, and self- 
government of the Anglican race. 1 The trial by jury, the 
representative government, the common law, self- taxation, 
the supremacy of the law, publicity, the submission of the 
army to the legislature, and whatever else has been enumer- 
ated, form part and parcel of our liberty. There are, how- 
ever, features and guarantees which are peculiar to ourselves, 
and which, therefore, we may say constitute American liberty. 
They may be summed up, perhaps, under these heads: repub- 
lican federalism, strict separation of the state from the church, 
greater equality and acknowledgment of abstract rights in the 
citizen, and a more popular or democratic cast of the whole 
polity. 

The Americans do not say that there can be no liberty with- 
out republicanism, nor do they, indeed, believe that wherever 
a republican or kingless government exists, there is liberty. 
The founders of our own independence acknowledged that 
freedom can exist under a monarchical government, in the 
very act of their declaration of independence. Throughout 
that instrument the Americans are spoken of as freemen whose 



1 We have discussed the trial by jury, and even the grand jury, as elements of 
Anglican liberty. I am now obliged to add, that when this page was correcting 
for the press, the author learned that the state of Michigan had passed a law by 
which, after the 12th day of April, 1859, the grand jury is to be dispensed with 
as an ordinary instrument of criminal proceeding, though power is reserved to 
the judges to resort to it in certain special cases. The people of Michigan have 
thus shown an inclination toward the French system. French, and continental 
European lawyers in general have an aversion to the grand jury. 



AND SELF-GOVERNMENT. 257 

rights and liberties England had unwarrantably invaded. It 
rests all its assertions and all the claimed rights on the liberty 
that had been enjoyed, and, after a long recital of deeds of 
misrule ascribed to the king, it says : *i A prince, whose 
character is thus marked by every act which may define a 
tyrant, is unfit to be the ruler of a free people." It broadly 
admits, therefore, that a free people may have a monarch, and 
that the Americans were, and considered themselves, a free 
people before they claimed to form a separate nation. 

Nevertheless it will be denied by no one that the Americans 
believe that to be the happiest political state of things in which 
a republican government is the fittest ; nor that republicanism 
has thoroughly infused itself into all their institutions and 
views. This republicanism, though openly pronounced at the 
time of the revolution only, had been long and historically 
prepared, by nearly all the institutions and the peculiarly 
fortunate situation of the colonies, or it may be said that the 
republican elements of British self-government found a pecu- 
liarly favorable soil in America from the first settlements. 

A fault of England, to speak from an English point of view, 
was of great service to American republicanism. England 
never created a colonial aristocracy. Had she sprinkled this 
country with a colonial peerage and put this peerage in some 
vital connection with the peerage of Great Britain, — for instance, 
had she allowed the colonial peers to elect representative peers 
to sit in the British house of lords, as is the case with Scot- 
tish peers, and had she given some proportionate precedence 
to American noblemen, e.g., had she allowed an American 
duke to take rank with a British earl, — she would have had a 
strong support in this country at the time of the revolution. 
Possibly, Ave would have had not only a simple war of inde- 
pendence, but a civil war, and our so-called revolution, which 
was no revolution in the sense in which we take the word when 
we apply it to the revolutions of England and France, and 
which in German is called an Abfall, (severance,) must have 
had a far different character. It was one of our great bless- 
ings that we were not obliged to pass through an internal con- 

l 7 



258 ON CIVIL LIBERTY 

vulsion in order to establish independence and republican free- 
dom. It was a blessing, a fortune, vouchsafed us, not made 
by us — a fact which we must never forget when we compare 
our struggle, or that of the Netherlands, with the real revo- 
lutions of other countries, if we desire to be just. 

But it is not only republicanism that forms one of the prom- 
inent features of American liberty ; it is representative repub- 
licanism and the principle of confederation or federalism, 1 
which must be added, in order to express this principle cor- 
rectly. We do not only consider the representative principle 
necessary in all our states in their unitary character, but the 
framers of our constitution boldly conceived a federal republic, 
or the application of the representative principle, with its two 
houses, to a confederacy. It was the first instance in history. 
The Netherlands, which served our forefathers as models in 
many respects, even in the name bestowed on our confederacy, 
furnished them with no example for this great conception. It 
is the chief American contribution to the common treasures 
of political civilization. It is that by which America will 
influence other parts of the world more than by any other 
political institution or principle. Already are voices heard 
in Australia for a representative federal republic like ours. 
Switzerland, so far as she has of late reformed her federal con- 
stitution, has done so in avowed imitation of the federal pact 
of our Union. I consider the mixture of wisdom and daring, 
shown in the framing of our constitution, as one of the most 
remarkable facts in all history. Our frame of government, 
then, is justly called a federal republic, with one chief magis- 
trate elected by what the Greeks called, in politics, the Koi- 
non, the Whole, with a complete representative government 
for that whole, a common army, a judiciary of the Union, and 
with the authority of taxing the whole. It is called by no one 
a league. 

Of the strict separation of the church from the state, in all 
the federated states, I have spoken already. The Americans 



1 Federalism is taken here, of course, in its philosophical and not in its party 
sense. 



AND SELF-GOVERNMENT. 



259 



consider it as a legitimate consequence of the liberty of con- 
science. They believe that the contrary would lead to dis- 
astrous results with reference to religion itself, and it is un- 
deniable that another state of things could not by possibility 
have been established here. We believe, moreover, that the 
great mission which this country has to perform, with refer- 
ence to Europe, requires this total divorce of state and church 
(not religion.) 1 Doubtless, this unstinted liberty leads to 
occasional inconvenience ; even the multiplicity of sects itself 
is not free from evils ; but how would it be if this divorce did 
not exist ? The Americans cling with peculiar fervor to this 
very principle. 

We carry the principle of political equality much farther 
than any free nation. We had no colonial nobility, although 
some idea of establishing it was entertained in England when 
the revolution broke out, and the framers of the constitution 
took care to forbid every state, and the United States collect- 
ively, from establishing any nobility. Even the establishment 
of the innocent Cincinnati Society gave umbrage to many. 2 
We have no right of primogeniture. 3 This equality has more 



1 I lately saw a pamphlet, written by an American minister, in which the Con- 
stitution of the United States was called atheistical — an expression I have seen 
before. I do not pretend exactly to understand its meaning. I suppose, how- 
ever, that the word atheistical is taken in this case as purely negative, and as 
equivalent to not mentioning God, not, of course, as equivalent to reviling the 
• deity. Even in this more moderate sense, however, the expression seems to me 
surprising. There was a time when every treaty, nay, every bill of lading, began 
with the words, In the name of the Holy Trinity, and every physician put the 
alpha and omega at the top of his recipe. Whatever the sources may have been 
from which these usages sprang, I believe it will be admitted that the modem 
usage is preferable, and that it does not necessarily indicate a diminished zeal. 
The most religious among the framers may not have thought of placing the name 
of God at the head of our constitution, for the very reason that God was before 
their eyes, and that this occasion did not suggest to them the idea of specially 
expressing their belief. Nee deus intersit nisi dignus vindice nodus. 

2 In Europe, where an accurate knowledge of the American state of things did 
not exist, it was, I believe, universally considered as the beginning of a new 
nobility, and pointed out as a glaring inconsistency. 

3 We can do entirely without it as to property in land. Our abundance of 
land does not require it; but there are countries in which the constant parcelling 



26o ON CIVIL LIBERTY 

and more developed itself, and all states I believe have adopted 
the principle of universal suffrage. Property qualification for 
voting does not exist any longer, and for being elected it exists 
in very few states. The Constitution of the United States pro- 
vides for representation in the lower house, according to num- 
bers, except that slave property is represented. 

But here it must be observed that, however unqualifiedly 
the principle of political equality is adopted throughout the 
whole country with reference to the white population, it stops 
short with the race. Property is not allowed to establish any 
difference, but color is. Socially the colored man is denied 
equality in all states, and politically he is so in those states 
in which the free colored man is denied the right of voting, 
and where slavery exists. I believe I may state as a fact 
that the stanchest abolitionist, who insists upon immediate 
manumission of all slaves, does not likewise insist upon an 
immediate admission of the whole manumitted population 
to a perfect political equality. In this, however, I may be 
mistaken. 1 

Two elements constitute all human progress, historical de- 
velopment and abstract reasoning. It results from the very 
nature of man, whom God has made an individual and a social 
being. His historical development results from the continuity 
of society. 2 Without it, without traditional knowledge and 
institutions, without education, man would no longer be man ; 
without individual reasoning, without bold abstraction, there* 



of land led to such a ruinous subdivision that the governments were obliged to 
establish a minimum beyond which land shall not be allowed to be divided, and 
which, thus undivided, goes either to the oldest or the youngest of the sons. The 
late president von Vincke, one of the most distinguished Prussian statesmen, 
mentioned in an elaborate report on the extreme division of land, that there had 
been a lawsuit in the Rhenish province about a square foot or two of vineyard 
land. Such cases, probably, are of frequent occurrence in China. What would 
be said, in those densely-peopled countries, of our Virginia or worm-fences, which 
waste a strip of land five feet wide throughout the South and West ? 

1 [Since Dr. Lieber published these words, in 1859, the system of slavery has 
disappeared, and perfect, or nearly perfect, political equality of all colors exists.] 

2 This is treated more fully in the Political Ethics. 



AND SELF-GOVERNMENT. 2 6l 

would be no advancement. Now, single men, entire societies, 
whole periods, will incline more to the one or to the other 
element, and both present themselves occasionally in indi- 
viduals and entire epochs as caricatures. One-sidedness is to 
be shunned in this as in all other cases ; perfection, wisdom, 
results from the well-balanced conjunction of both, and I do 
not know any nobler instance of this wisdom than that which 
is presented by the men of our revolution. They were bold 
men, as I have stated already ; they went fearlessly to work, 
and launched upon a sea that had as yet been little navigated, 
when they proposed to. themselves the establishment of a re- 
public for a large country. Yet they changed only what im- 
peratively required change ; what they retained constituted an 
infinitely greater portion than that which they changed. It 
does not require an extraordinary power of abstraction, nor 
very profound knowledge, to imagine what must have been 
the consequence had they upset the whole system in which 
they lived, and allowed their ill will toward England, or a 
puerile vanity, to induce them to attempt an entirely new state 
of things. 

They, on the contrary, adopted every principle and institu- 
tion of liberty that had been elaborated by the English. They 
acted like the legislators of antiquity. Had they acted other- 
wise, their constitution must have proved a still-born child, as 
so many other constitutions proclaimed since their days have 
done. Their absence of all conceit, and their manly calmness, 
will forever redound to their honor. 

It seems to me that while the English incline occasionally 
too much to the historical element, we, in turn, incline occa- 
sionally too much toward abstraction. 

However this may be, it is certain that we conceive of the 
rights of the citizen more in the abstract and more as attri- 
butes of his humanity, so long as this means our own white 
race. Beyond it the abstraction ceases, so much so that the 
supreme court lately decided that people of color (although 
they were unquestionably subjects to the King of England 
before the independence of the United States) are not citizens 



262 ON CIVIL LIBERTY 

in the sense of the constitution, 1 and that several free states 
have enacted laws against the ingress of people of color, which 
seem to be founded exclusively on the power which the white 
race possesses over the colored, and which elicit little exami- 
nation because the first basis of all justice, sympathy, is want- 
ing between the two races. 2 

From this conception of the citizenship — this carrying of 
the ancient jus ante omnia jura natum, so long as it relates to 
our own race, much farther than the English do — arises the 
fact that in nearly all states universal suffrage has been estab- 
lished, while in England the idea of class representation much 
more prevails. The Americans do not know, I believe, in a 
single case the English rate-paying suffrage ; but it must be 
recorded that the serious misrule of American cities has in- 
duced the opinion of many reflecting men that populous cities 
cannot be ruled by bare universal suffrage ; since universal 
suffrage, applied to city governments, gives to the great 
majority, that do not own houses or land, the right to raise 
and dispose of the taxes solely levied on real property. 

On the other hand, it appears to Americans a flagrant act to 
disfranchise entire corporate constituencies for gross pervading 
bribery, as has been repeatedly done in English history. In- 
deed the right of voting has been often pronounced in England 
a vested right of property. 

I have also stated that our whole government has a more 
popular cast than that of England, and with reference to this 
fact, as well as to the one mentioned immediately before it, I 
would point out the following farther characteristics of Ameri- 
can liberty. 

We have established everywhere voting by ballot. There 
is an annually increasing number of members voting in the 
English commons for the ballot. It is desired there to pre- 
vent intimidation. Probably it would have that effect in Eng- 



1 The Dred Scott case, already so famous, but which will become far more 
famous still in the course of our history. 

2 See p. 260, note 1. 



AND SELF-GOVERNMENT, 263 

land, but certainly not in such a degree as the English seem 
to expect. The ballot does not necessarily prevent the vote 
of a person from being known. 1 Although the ballot is so 
strongly insisted upon in America, it is occasionally entirely 
lost sight of. 2 

" Tickets" printed on paper whose color indicates the party 
which has issued it, are the most common things ; and, in the 
place of my former residence, it happened some years ago that 
party feeling ran to such a height, that, in order to prevent 
melancholy consequences, the leaders came to an agreement. 
It consisted in this : that alternate hours should be assigned 
to the two parties, during which the members of one party 
only should vote. This open defeat of the ballot was carried 
out readily and in good faith. 

The Constitution of the United States, and those of all the 
states, provide that the houses of the legislatures shall keep 
their journals, and that on the demand of a certain, not very 
large, number of members, the ayes and noes shall be recorded. 
The ayes and noes have sometimes a remarkable effect. It is 
recorded of Philip IV. of Spain, 3 that he asked the opinion of 
his council on a certain subject. The opinion was unani- 
mously adverse ; whereupon the monarch ordered every coun- 
sellor to send in his vote signed with his name, and every vote 
turned out to be in favor of the proposed measure. The ayes 
and noes have unfortunately sometimes a similar effect with 
us. Still, this peculiar voting may operate upon the timid as 
often beneficially as otherwise; at any rate, the Americans 



1 There is an instructive article on voting in the Edinburgh Review, of Octo- 
ber, 1852, on Representative Reform. The writer, who justly thinks it all- 
important that every one who has the right to vote for a member of parliament 
should vote, proposes written votes to be left at the house of every voter, the 
blanks to be filled by him, as is now actually done for parish elections. There 
existed written votes in the early times of New England, and people were fined 
for not sending them. It was not necessary to carry them personally to the poll. 
These written votes prevailed in the middle ages. For this and other subjects 
connected with elections, see the paper on elections in the Appendix. 

2 [The ballot is now introduced into England.] 

3 Coxe's Memoirs of the Bourbons in Spain. 



264 ON CIVIL LIBERTY 

believe that it is proper thus to oblige members to make their 
vote known to their constituents. 

We never give the executive the right of dissolving the 
legislature, nor to prorogue it. 

We have never closed the list of the states composing the 
Union, in which we differ from most other confederacies, an- 
cient or modern ; we admit freely to our citizenship those who 
are foreigners by birth, and we do not believe in inalienable 
allegiance. 1 



1 The character of the English and of our allegiance is treated at length in 
the Political Ethics. I there took the ground that even English allegiance is a 
national one, whatever the language of the law-books may be to the contrary. 
The following may serve as a farther proof that English allegiance, after all, is 
dissoluble. It appears from the New England charter, granted by James I., that 
he claimed, or had the right " to put a person out of his allegiance and protec- 
tion." Page 16, Compact, with the Charter and Laws of the Colony of New 
Plymouth, etc., Boston, 1836. 

Had we any nobility, or had we closed our confederacy, we must have been 
exposed to the troubles to which the ancient republics were exposed, and which 
form a leading feature through the whole history of Rome. We acquired 
Louisiana, and, with her French population, she is fairly assimilated with our 
great polity. She would have been a dangerous cancer had we treated her as 
Rome treated her acquisitions, and a war of the Socii, as the Romans had it, 
must ultimately have broken out. In this, then, we differ in a marked way from 
the English. When Scotland was united to England, by establishing one legis- 
lature for both, and when a similar process took place with reference to Ireland, 
a perfect assimilation was not the consequence, as had been the case with Wales. 
The non-assimilation is still more marked in the case of the colonies. English 
readers may possibly believe that a foreign author passes his proper boundary if 
he ventures to discuss a subject of the highest statesmanship peculiarly domestic 
in its character, but " the by-stander often sees the faults of the men in the ring." 
How could we write on foreign history were we not allowed to judge of foreign 
subjects ? Nor is this subject wholly foreign to an American, because he naturally 
knows more of Canada than most English do, and he knows his own colonial 
history. Thus justified, and making full allowance for the difficulties that may 
exist, we cannot help feeling surprised that England, in many other respects the 
only power that has shown true liberality toward colonies — so different from 
Spain ! — and with our war of independence before her eyes, should not think of 
tying the distant empires she creates in all the portions of the globe, by a repre- 
sentation in her parliament, making it, so far as the colonies are concerned, the 
imperial congress. Though each distinct colony with a colonial self-government 
should have but two or three representatives in the commons, representing the 



AND SELF-GOVERNMENT. 26$ 

We allow, as it has been seen, no attainder of blood. 

We allow no ex post facto laws. 

American liberty contains as one of its characteristic ele- 
ments the enacted or written constitution. This feature dis- 
tinguishes it especially from the English polity with its accu- 
mulative constitution. 

We do not allow, therefore, our legislatures to be politically 
" omnipotent," as, theoretically at least, the British parliament 
is. 1 This characteristic, again, naturally led to the right and 
duty of our supreme courts in the states, and of the supreme 
court of the United States, to decide whether a law passed, 
by the legislature or by congress, is in conformity with the 
superior law — the constitution — or not ; in other words, on the 
constitutionality of a law. It has been stated already that the 
courts have no power to decide on the law in general ; but 
they decide, incidentally, on the whole law, when a specific 
case of conflict between a certain law and the constitution is 
brought before them. 

I may add as a feature of American liberty that the Ameri- 
can impeachment is, as I have stated before, a political and 



colony as such, it seems that the effect upon the consistency of the whole gigantic 
empire would be distinct, and that such a measure is the only one that would 
promise continued cohesiveness. 

1 For the English reader I would add that the following works ought to be 
studied or consulted on this subject: The Constitution of the United States, and 
the constitutions of the different states, which are published from time to time, 
collected in one volume ; the Debates on the Federal Constitution ; The Federal- 
ist, by Hamilton, Madison, and Jay; the Writings of Chief- Justice Marshall, 
Boston, 1839; the History of the Constitution of the United States, by G. T. 
Curtis, a work of mark ; Mr. Justice Story's Commentaries on the Constitution 
of the United States; Mr. Calhoun's and Mr. Webster's Works; Mr. Rawle's 
work on the Constitution, and Mr. Frederic Grimke's Considerations upon the 
Nature and Tendency of Free Institutions, Cincinnati, 1848. To these may be 
added the Course of Lectures on the Constitutional Jurisprudence of the United 
States, by W. A. Duer, Boston, 1856, [and Pomeroy's Constitutional Law, New 
York, 1868.] An entire literature of its own has accumulated, by this time, on 
the constitution, jurisprudence, and constitutional history of the United States. 
The chief of the enumerated works will suffice to lead the student to the more 
detailed works of this department. 



266 ON CIVIL LIBERTY 

not a penal institution. It seems to me that I am borne out 
in this view by the Federalist. 1 

In conclusion, I would state as one of the characteristics of 
American liberty the freedom of our rivers. The unimpeded 
navigation of rivers belongs to the right of free locomotion 
and intercommunication, of which we have treated ; yet there 
is no topic of greater interest to the historian, the economist, 
and the statesman, than the navigation of rivers, because, 
though the rivers are nature's own higlrways, and ought to be 
as efficient agents of civilization as the Road or the Mail, their 
agency has been thwarted by the oppressive force of man, in 
almost all periods of our history. The Roman empire, doing 
little indeed for commerce by comprehensive statesmanship, 
effected at least a general freedom of the rivers within its 
territory, as a natural consequence of its unity. The Danube 
became free, from the interior of Germany to the Black Sea. 
But the barbarous times which succeeded reduced, once more, 
the rivers to the state of insecurity in which they had been 
before the imperial arm had warded off intrusion and inter- 
ruption. Free navigation had not even been re-established in 
all the larger empires of the European continent, when the first 
French revolution broke out. It was one of the most important 
provisions of the act of confederation agreed upon at Vienna, 
in 1 8 1 5 , between the Germanic states, that immediate steps 
should be taken to make the river navigation in Germany 
free, but the desired object had not been obtained as late as 
in 1 84s. 2 The long dispute about the navigation of the river 



1 No. lxv. 

As to the parties in America, they may fairly be said to have little to do with 
civil liberty, which will be readily seen by the so-called National Platforms, 
resolved upon as the true indexes of the parties by the conventions held pre- 
paratory to the presidential elections. Nor do the names of the parties indicate 
anything with reference to Liberty. The term Democratic has wholly lost its 
original meaning, as used to designate the party which has taken it. Among 
others, the Resolutions published by the different conventions in the year 1853, 
previous to Mr. Pierce's election, and which were drawn up with great care, 
fully prove this. 

3 I owe to the friendship of Mr. Kapp (author of the Life of Baron Steuben) 



AND SELF-GOVERNMENT. 267 

Scheldt has become famous in the history of law and of human 
progress. In this case, however, a foreign power, the Nether- 
lands, denied free navigation to those in whose country the 
river rises and becomes navigable. 1 Magna Charta declares, 
indeed, what has been called "the freedom of the rivers;" but, 
on the one hand, English rivers are, comparatively speaking, 
of little importance to navigation, and, on the other hand, 
England had not to overcome the difficulty which arises out 
of the same river passing through different states. It was 
therefore a signal step in the progress of our species when the 
wise framers of our constitution enacted that vessels bound to 
or from one state shall not be obliged to enter, clear, or pay 
duties in another, 2 and every one who cherishes his country 
and the essential interests of our species must be grateful that 
subsequent legislation, and decisions by courts, have firmly 
established 3 the inestimable right of free navigation in a coun- 
try endowed with a system of rivers more magnificent and 
more benign, if left free and open, than that of any other 
country. An able writer and comprehensive statesman says : 

" It was under the salutary instruction thus afforded by 
the Scheldt, and just before the French revolution broke its 
shackles, that our thirteen confederated states acquired the 
Mississippi. 

" In March, 1785, Rufus King, then a delegate from Massa- 
chusetts in the congress of the confederation, received from 



a book of remarkable interest, in many respects : Gottlieb Mittelberger's Journey 
to Pennsylvania in the Year 1750 and Return to Germany in 1754, Frankfurt, 
1756. Mittelberger was organist and schoolmaster.- He was seven weeks on 
his way from Wiirtemberg to Rotterdam, chiefly on the Rhine. The Journal of 
Albert Diirer, the great painter, gives the same lamentable account of his jour- 
ney on the Main and Rhine. 

1 A t'me may come — I believe it will — when the international law of our 
family of nations will acknowledge that those who border on a navigable river 
have a right, by nature, to sail down that river to the sea without hindrance, toll, 
or inconvenience. 

2 Constitution of the United States, section 9. 

3 See, among others, Duer's Lectures on the Constitutional Jurisprudence of 
the United States, 2d edition, page 258 and sequ. 



268 ON CIVIL LIBERTY 

Timothy Pickering a letter containing these emphatic and 
memorable words : 

" 'The water communications in that country will always be 
in the highest degree interesting to the inhabitants. It seems 
very necessary to secure the freedom of 7iavigating these to 
all the inhabitants of all the states. I hope we shall have no 
Scheldts in that country.' * 

" The high duty of carrying into effect that great suggestion 
immediately occupied the attention of Mr. King and his asso- 
ciates. The honor of framing the clause — which secures, ' not 
for a day, but for all time,' freedom of commerce over an un- 
broken net-work of navigable water spread out for more than 
sixteen thousand miles — was shared between Massachusetts 
and Virginia, then standing shoulder to shoulder, where they 
had stood throughout the Revolution. 

" The clause was formally introduced into the congress 
by Mr. Grayson, of Virginia, and seconded by Mr. King, of 
Massachusetts. Listen to its words, so broadly national, so 
purely American : 

" ' The navigable waters leading into the Mississippi and St. 
Lawrence, and the carrying places between the same, shall be 
common property, and forever free, as well to the inhabit- 
ants of the said country, as to the citizens of the United 
States, and those of any other states that may be admitted 
into the confederacy — without any tax, duty, or impost 

THEREFOR.' 

"The clause was immediately incorporated into the ordi- 
nance, and passed by the congress on the 13th day of July, 

" Here, then, we behold the Magna Charta of the internal 
navigation of America," 2 which we enjoy, and have first en- 



1 The original is in the possession of Dr. Charles King, president, of Columbia 
College, New York. 

a This passage is copied from a Defence of the Right and the Duty of the 
American Union to improve the Navigable Waters, by Samuel B. Ruggles, a 
speech delivered in October, 1852. The speaker has given his views on this and 
kindred topics more extensively in a state paper of rare excellence, whether the 



AND SELF-GOVERNMENT. 269 

joyed, of all confederacies, ancient or modern. It gives the 
absolutely free use of the noblest river system extending over 
a continent. 



contents, the historical survey and statistic knowledge, or the transparency of the 
style and language be considered. The paper bears the title, Memorial of the 
Canal Board and Canal Commissioners of the State of New York, asking for the 
Improvement of the Lake Harbors by the General Government, Albany, N. Y., 
1858, and was, as such, adopted by the legislature of New York and presented 
to congress. 

[It ought to be added, however, that this ordinance applied only to the North- 
west territory, over which the treaty of peace with Great Britain, in 1 783, gave 
to the Confederation full power to act. Navigation within or. between the old 
thirteen states was not touched by this ordinance. The present freedom of navi- 
gable rivers depends on the constitutional power of Congress " to regulate com- 
merce with foreign nations and among the several states, and with the Indian 
tribes;" as well as on the right of governing the territories, conferred by the 
constitution.] 



/ 

270 ON CIVIL LIBERTY 



CHAPTER XXIII. 

IN WHAT CIVIL LIBERTY CONSISTS, PROVED BY CONTRARIES. 

I have endeavored to give a sketch of Anglican liberty. It 
is the liberty we prize and love for a hundred reasons, and 
which we would love if there were no other reason than that 
it is liberty. We know that it is the political state most 
befitting to conscious man. History as well as our own preg- 
nant times proves to us the value of those guarantees, their 
necessity if we wish to see our political dignity secure, and 
their effect upon the stability of government, as well as on the 
energies of the people. We are proud of our self-government 
and our love of the law as our master, and we cling the faster 
to all these ancient and modern guarantees, the more we 
observe that, wherever the task which men have proposed to 
themselves is the suppression of liberty, these guarantees are 
sure to be the first objects of determined and persevering 
attack. It is instructive for the friend of freedom to observe 
how uniformly and instinctively the despots of all ages and 
countries have assailed the different guarantees enumerated 
in the preceding pages. We can learn much in all practical 
matters by the rule of contraries. As the arithmetician proves 
his multiplication by division, and his subtraction by addition, 
so may we learn what those who love liberty ought to prize, 
by observing what those who hate freedom suppress or war 
against. This process is made peculiarly easy as well as 
interesting at this very period, when the government of a 
large nation is avowedly engaged in suppressing all liberty 
and in establishing the most uncompromising monarchical 
absolutism. 

I do not know a single guarantee contained in the foregoing 



AND SELF-GOVERNMENT. 27 1 

pages, which might not be accompanied by a long historical 
commentary showing how necessary it is, from the fact that it 
has been attacked by those who are plainly and universally 
acknowledged as having oppressed liberty or as having been 
at least guilty of the inchoate crime. It is a useful way to 
turn the study of history to account, especially for the youth 
of free nations. It turns their general ardor to distinct reali- 
ties, and furnishes the student with confirmations by facts. 
We ought always to remember that one of the most efficient 
modes of learning the healthful state of our body and the 
normal operation of its various organs consists in the study 
of their diseased states and abnormal conditions. The patho- 
logic method is an indispensable one in all philosophy and 
in politics. The imperial time of Rome is as replete with 
pathetic lessons for the statesman as the republican epoch. 

It would lead me far beyond the proper limits of this work, 
were I to select all the most noted periods of usurpation, or 
those times in which absolutism, whether monarchical or 
democratic, has assumed the sway over liberty, and thus to 
try the gauge of our guarantees. It may be well, however, to 
select a few instances. 

In doing so I shall restrict myself to instances taken from 
the transactions of modern nations of our own race; but the 
student will do well to compare the bulk of our liberty with 
the characteristics of ancient and modern despotism in Asia, 
and see how the absence of our safeguards has there always 
prevented the development of humanity which we prize so 
highly. He ought then to compare this our own modern 
liberty with what is more particularly called antiquity, and see 
in what we excel the ancients or fall behind them, and in what 
that which they revered as liberty differed from ours. He 
ought to keep in mind our guarantees in reading the history 
of former free states, and of the processes by which they lost 
their liberty, or of the means to which the enemies of liberty 
have resorted, from those so masterly delineated by Aristotle, 
down to Dr. Francia and those of the present time, and he 
ought again to compare our broadcast national liberty with 



272 ON CIVIL LIBERTY 

the liberties of the feudal age. He ought, lastly, to present 
clearly to his mind the psychologic processes by which liberty 
has been lost — by gratitude, hero-worship, impatience, indo- 
lence, permitting great personal popularity to overshadow 
institutions and laws, hatred against opposite parties or classes, 
denial of proper power to government, the arrogation of more 
and more power, and the gradual transition into absolutism ; 
by local jealousies, by love of glory and conquest, by passing 
unwise laws against a magnified and irritating evil — laws which 
afterwards serve to oppress all, by recoiling oppression of a 
part, by poverty and by worthless use of wealth, by sensuality 
and that indifference which always follows in its train. 

Liberty of communion is one of the first requisites of free- 
dom. Wherever, therefore, a government struggles against 
liberty, this communion forms a subject of peculiar attention. 
Not only is liberty of the press abolished, but all communion 
is watched over by the power-holder, or suppressed as far as 
possible. The spy, the mouchard, the delator, the informer, 
the sycophant, are sure accompaniments of absolutism. 1 The 
British administration under Charles II. and James II. looked 
with a jealous eye on the " coffee-houses," and occasionally 
suppressed them. One of the first things done by the French 
minister of police, after the second of December, was to close 
a number of " cabarets" at Paris, and to put all France under 
surveillance. This may become necessary for a time under 
pressing circumstances, which may place a government in the 
position of a general in a beleaguered city, but it is not liberty; 
it is the contrary, and if the measure is adopted as a per- 
manent one it becomes sheer despotism. So soon as Louis 
Napoleon had placed himself at the head of an absolute 
government, he not only abolished the liberty of the press, 
but he went much farther, as we have seen ; he placed the 
printing-presses themselves and the sale of type under the 



1 Much that relates to the history of the spy and informer, in ancient and 
modern times, may be found in the second volume of Political Ethics, where 
the citizen's duty of informing is discussed. 



AND SELF-GOVERNMENT. 273 

police, and ordered that no press with the necessary printing 
materials should be sold or change hands without previous 
information being given to the police. 

While it is a characteristic of our liberty that the public 
funds are under the peculiar guardianship of the popular house 
of the legislature, and that short appropriations are made for 
distinct purposes, especially for the army and navy, all govern- 
ments hostile to liberty endeavor to rule without appropria- 
tions, or, if this is not feasible, by having the appropriations 
made for a long term and not for detailed purposes. The last 
decree of Napoleon III., relating to this subject, is that the 
legislative corps must vote the budget of each department en 
bloc, that is, in a lump, and either wholly reject or adopt it, 
without amendment. English history furnishes a long com- 
mentary on this point of appropriations. Charles I. lost his 
head in his struggle for a government without parliament, 
which then meant, in a great measure, without regular appro- 
priations, or the assumption of ruling by taxation on royal 
authority. Wherever on the European continent it has been 
the endeavor to establish a constitutional government, the 
absolutists have complained of the " indecency" of making 
governments annually "beg" for supplies. 

Liberty requires the supremacy of the law ; the supremacy 
of the law requires the subordination of the army to the legis- 
lature and the whole civil government. The Declaration of 
Rights enumerates the raising and keeping a standing army 
without consent of parliament, as one of the proofs that James 
II. had endeavored " to subvert and extirpate the laws and 
liberties" of England ; while all governments reluctantly yield- 
ing to the demands of liberty have struggled to prevent at 
least the obligation of the army to take the oath of fidelity to 
■the constitution. The army is studiously separated from the 
people, and courted as peculiarly allied to the prince. Napo- 
leon I. treated the army as the church was often treated in the 
middle ages — the main body in the state ; and Napoleon III. 
lately said in a solemn speech that he desired to present the 
new empress to the people and the army, as if it formed at 

18 



274 



ON CIVIL LIBERTY. 



least one-half of the state and were a body separate from the 
people. When he gave eagles to the whole army at what is 
called the fete of the eagles, in 1852, he said: "The history 
of nations is in a great measure the history of armies," and 
continued in a strain sounding as if it belonged to the times 
of the migration of nations. 1 

But English and American freemen will never forget that 
the highest glory of a great people, and that by which it 
most signally performs the task assigned to it in the further- 
ance of our race, are its literature and its law, if this con- 
sists in a wise system founded on justice, humanity, and 
freedom. 

The supremacy of the law is an elementary requisite of 
liberty. All absolutism spurns, and has a peculiar dislike of, 
the idea of fundamental laws. Aristotle enumerates as the 
fourth species of government that in which the multitude and 
not the law is the supreme master ; James II. claimed the dis- 
pensing power, and Louis Napoleon affirmed, when yet presi- 
dent under the republican constitution which prohibited his 
re-election, that if the people wanted him to continue in office 
he should do it nevertheless, and all his adherents declared 



1 I quote the whole passage of this stupendous allocution, which no historian 
or political philosopher, had he discovered it, as Cuvier found and construed 
remains of animals, would have assigned to the middle of the nineteenth cen- 
tury. What becomes of England and the United States if the essence of history 
does not lie in the development of the nation and especially of its institutions? 
The following are the exact words: 

" Soldiers, the history of nations is in great part the history of armies. On 
their success, or on their reverses, depends the fate of civilization and of the 
country. When they are vanquished, there is either invasion or anarchy; when 
victorious, glory or order. 

" In consequence, nations, like armies, pay a religious veneration to the em- 
blems of military honor, which sum up in themselves a whole past existence of 
struggles and of triumphs. 

" The Roman eagle, adopted by the Emperor Napoleon at the commencement 
of the present century, was the most striking signification of the regeneration 
and grandeur of France ;" and so on. 

When the democratic Gesar reviewed the guards, before they started for the 
Crimea, in 1855, he called the army the nobility of the French nation. 



AND SELF-GOVERNMENT. 2 J$ 

that the people being the masters could do as they liked, 
which reminds us of the Athenians who impatiently ex- 
claimed : " Can we not do what we list ?" when told that there 
was a law forbidding what they intended to do. 

The division of power, which was already observed as an 
important point in government by "the master of all that 
know," is invariably broken down as far as possible by the 
absolutists. The judiciary is interfered with whenever its slow 
procedure or its probable results irritate the power-holder. 
The history of all nations, from the earliest times to Napo- 
leon III.'s taking the trial on the legality of the Orleans 
spoliation out of the hands of the judiciary, proves it on every 
page. 

Self-government, general as well as local, is indispensable 
to our liberty, but interference and dictation are the essence 
of absolutism. Monarchical absolutisms presume to do every- 
thing and to provide for everything, and Robespierre, in his 
" great speech" for the restoration of the Supreme Being, 
said : The function of government is to direct the moral and 
physical forces of the nation. For this purpose the aim of a 
constitutional government is the republic. 1 

Liberty requires that every one should be judged by his 
common court. All despots insists on extraordinary courts, 
courts of commission, and an easy application of martial 
law. 

Forcible expatriation or deportation "beyond the seas" by 
the executive is looked upon with peculiar horror by all free- 
men. The English were roused by it to resistance; Napo- 
leon III. began his absolute reign with exile and deportation. 
So did the Greek factions banish their opponents when they 
had the power of doing so, because no "opposition" in the 
modern sense was known to them. With them it was the 
blundering business of factions ; moderns know better, and if 



1 The words of Robespierre are sufficiently clear, if taken as an illustration of 
•what has been stated in the text; otherwise, I own, the sense is not perfectly 
apparent. 



2 ;6 ON CIVIL LIBERTY 

they return to it, it is because despotism is a thing full of fear 
and love of show. 

How great an offence it is to deprive a man of his lawful 
court and to judge him by aught else than by the laws of the 
land, now in the middle of the nineteenth century, will appear 
the more forcibly if the reader will bring to his mind that 
passage of Magna Charta which appeared to Chatham worth 
all the classics, and if he will remember the year when the 
Great Charter was carried. The passage, so pregnant to the 
mind of Chatham, is this : 

" No freeman shall be taken, or imprisoned, or be disseised 
of his freehold or liberties, or free customs, or be outlawed 
or exiled, or any otherwise destroyed, nor will we (the 
king) pass upon him, nor condemn him, but by lawful judg- 
ment of his peers, or by the law of the land. We will sell 
to no man, we will not deny or defer to any man, justice or 
right." z 

Publicity is a condition without which liberty cannot live. 
The moment it had been concluded by the present government 
of France to root out civil freedom, it was ordained that neither 
the remarks of the members of the legislative corps, nor the 
pleadings in the courts of justice, should be reported in the 
papers. Modern political publicity, however, consists chiefly 
in publication through the journals. We acknowledge this 
practically by the fact that, although our courts are never 
closed, 2 yet, for particular reasons arising out of the case 
under consideration, the publication of the proceedings is 
sometimes prohibited by the judge until the close of the trial, 
but never beyond it. 

Liberty stands in need of the legal precedent, and Charles I. 
pursued Cotton because he furnished Pym and other patriots 
with precedents, while the present French government has 



1 [I.e., chap. xxix. of the Charter of 9 Henry III., confirmed by Edward I. in 
the twenty-fifth year of his reign, and nearly agreeing with chapters xlvi. and 
xlvii. of John's Charter, as given in Appendix IV.] 

2 Very scandalous judicial cases, offensive to public morals, are, in France, 
conducted with closed doors. 



AND SELF-GOVERNMENT. 277 

excluded instruction in history from the plan of general edu- 
cation. History, in a certain point of view, may be called the 
great precedent. History is of all branches the most nourish- 
ing for public life and liberty. It furnishes a strong pabulum 
and incites by great examples removed beyond all party or 
selfish views. The favorite book of Chatham was Plutarch, 
and his son educated himself upon Thucydides. 1 The best 
historians have been produced by liberty, and the despot is 
consistent when he wishes to shackle the noble muse. 

Sincere civil liberty requires that the legislature should have 
the initiative. All governments reluctant to grant full liberty 
have withheld it, and one of the first things decreed by Louis 
Napoleon after the second of December was that the " legis- 
lative corps" should discuss such propositions of laws only as 
the council of state should send to it. The council of state, 
however, is a mere body of officers appointed and discharged 
at the will of the ruler. 

Liberty requires that government do not form a body perma- 
nently and essentially separated from the people; all modern 
absolute rulers have resorted to a number of distinctions — 
titles, ribbons, orders, peacock-feathers and buttons, uniforms, 
or whatever other means of separating individuals from the 
people at large may seem expedient. 

Liberty requires the trial by jury. Consequently, one of the 
first attacks which arbitrary power makes upon freedom is 
regularly directed against that trial. There is now a law in 
preparation in France, of which the outlines have been pub- 
lished, and which will place the jurors under the almost 
exclusive influence of the government. 

Liberty requires, as we have seen, a candid and well- 
guaranteed trial for treason ; all despotic governments, on the 
contrary, endeavor to break down these guarantees in par- 
ticular. They arrogate the power of condemning political 
offenders without trial, or strip the trial for treason of its best 
guarantees. 



1 So Bishop Tomlinson tells us in the Life of his pupil. 



278 ON CIVIL LIBERTY 

But we might go through the whole list of safeguards and 
principles of liberty, and find that in each case absolutism does 
the opposite. 

If the American peruses the Declaration of Independence, 
he will find there, in the complaints of our forefathers, almost 
a complete list of those rights, privileges, and guarantees 
which they held dearest and most essential to liberty ; for 
they believed that nearly every guarantee had been assailed. 



AND SELF-GOVERNMENT. 279 



CHAPTER XXIV. 

GALLICAN LIBERTY. SPREADING OF LIBERTY. 

Having considered Anglican liberty, it will be proper for us 
to examine the French type of civil freedom, or Gallican liberty. 

In speaking here of Gallican liberty, we mean, of course, 
that liberty which is characteristically French, either in reality, 
if we shall find that at any period it has taken actual root, or 
in theory, if it have remained such, and never practically 
developed itself. Liberty has sprouted in France as in other 
countries. People have felt there, as all over Europe, that the 
administration of justice ought to be independent of the other 
branches of government. The separation of the three great 
functions of government was proclaimed by the first constituent 
assembly. But the question here is, whether any of these or 
other endeavors to establish liberty have been consolidated 
into permanent institutions, whether they have been allowed 
to develop themselves, and whether they were or are peculiar 
to the French, or were adopted from another system of devel- 
oped civil liberty, as we adopt the whole or parts of an order 
of architecture or a philosophical system ; and, if we find no 
such institutions or guarantees peculiar to the French, whether 
there be a general idea and conception of liberty which per- 
vades all France and is peculiar to that country. 

In viewing the French institutions which have been in- 
tended for the protection of individual rights or the preserva- 
tion of liberty, I can discover none which has had a permanent 
existence, except the court of cassation or quashing. It is the 
highest court of France, possessing the power of annulling or 
breaking 1 the judgments of all other courts of justice, whether 



1 Casser is the French for breaking; hence the name of the court. 



280 ON CIVIL LIBERTY 

in civil or criminal matters, on account of faults and flaws in 
the judicial forms and procedure, or of misapplications of the 
existing law. It has no power to examine the verdict. It 
resembles, therefore, the court of Westminster, in England, 
when the assembled judges hear questions of law, or our su- 
preme court of the United States on similar occasions, and the 
supreme courts or courts of appeal or error in the different 
states. The court of cassation must necessarily sometimes 
judge of certain procedures of the government against indi- 
viduals, and declare whether individual rights, publicly guar- 
anteed, have been invaded. Thus it showed its power to 
some extent when Paris was declared in a state of siege and 
the whole city was under martial law. But the high attribute 
of pronouncing upon the constitutionality of the laws them- 
selves, which we cherish in our supreme courts, does not 
belong to it, nor can its power be vigorously and broadly 
exercised in a conflict with the supreme power, since this 
power bears down eveiything in a country so vast and yet 
so centralized as France, and in which the principle of de- 
velopment, independent of the executive or central power, is 
not acknowledged in the different institutions. The court of 
cassation has at the same time a supervisory authority over 
the judges of other courts, and can send them before the 
keeper of the seals (the minister of justice) to give an account 
of their conduct. It is likewise an object of the court of 
cassation to keep the application of the law uniform in the 
different portions of the country. This is a necessary effect 
of its power to quash judgments. 

The institution of the justice of the peace ought to be 
mentioned here, although it can only be considered as indi- 
rectly connected with liberty. The French justice of the peace 
differs from the English officer of the same name in this, that 
his function is exclusively of a conciliatory character. Courts 
of conciliation have existed in many countries, and long 
before the present justices of the peace were established in 
France by the first constituent assembly ; but, as we see them 
now there, they must be called a French institution. It has 



AND SELF-GOVERNMENT. 28 1 

proved itself in France, as well as in other countries, of the 
highest value in preventing litigation, with all the evils which 
necessarily attach themselves to it. 1 

No one, I suppose, would expect the senate, first established 
by Napoleon I. and then called the conservative senate, that 
is, the senate whose nominal duty it was to conserve the 
constitution, and now re-established by Napoleon III., to be 
enumerated as an institution for the support of liberty. It has 
no more connection with liberty than the Roman senate had 
under the emperors. Its very origin would lead no one to 
expect in it a guarantee of liberty. On the contrary, the 
French senate has been a great aid to imperial absolutism, by 
giving to comprehensive measures of monarchical despotism 
the semblance of not having originated with the absolute 
monarch or of having received the countenance of a high and 
numerous political body. In this respect the French senate 
seems to me worse than that of Russia. The Russian senate 
is nothing but a council, leaving all power and responsibility 
with the czar, in appearance as well as in reality. 

That which after careful examination must be pronounced 
to be Gallican liberty is, I take it, the idea of equality founded 
upon or acting through universal suffrage, or, as it is frequently 
called by the French, " the undivided sovereignty of the 
people" with an uncompromising centralism. As it is neces- 
sarily felt by many, that the rule of universal suffrage can, 
practically, mean only the rule of the majority, liberty is 
believed in France, as has been said, to consist in the absolute 
rule of the majority. 2 



1 We have seen that courts of conciliation have attracted renewed attention 
in England since Lord Brougham's proposition of an act for the Farther Cheap- 
ening of Justice, in May, 1 85 1. An instructive article on this important subject, 
and the excellent effects these courts have produced in many countries, shown 
by official statistics, can be found in the German Staats-Lexicon, ad verbum 
Friedensgericht. 

2 I have given my views on the subject of the nature of sovereignty and the 
.way it acts, at length in the first volume of the Political Ethics. If I have not 
succeeded there in mastering the subject, I should not be able to do it here; if 
I have succeeded, I cannot in fairness repeat a long discussion. 



282 ON CIVIL LIBERTY 

Every one who has steadily followed the discussions of the 
late constituent and national assemblies, who has resolutely 
gone through the debates of the first constituente, and studied 
the history of the revolution, and who is fairly acquainted with 
French literature, will agree, I trust, that the idea of Gallican 
liberty has been correctly stated. There are many French- 
men, indeed, who know that this is not liberty, that at most 
it can only be a means to obtain it ; but we now speak of the 
conception of liberty peculiar to the French school. 

Institutions, such as we conceive their necessary character 
to be, that is, establishments with the important element of 
self-government, and of a system of guarantees beyond the 
reach of daily change, do not enter as necessary elements into 
the idea of Gallican liberty. Self-government is sought for in 
the least impeded rule of the majority. It has been seen, 
however, that, according to the Anglican view, the question 
who shall rule is an important question of liberty indeed,, but 
only one about the means ; for if the ruler, whoever he be, 
deprives the ruled of liberty, there is of course no liberty. A 
suicide does not the less cease to live because he kills himself; 
and two game fowls nearly matched, as the parties in a nation 
may be, do not symbolize liberty, because at one time the one 
may be uppermost, and at another time the other. 

There seems to be in France a constant confusion of equality 
and democracy on the one hand, and of democracy and liberty 
on the other; now, although equality largely enters as an 
element in all liberty, and no liberty can be imagined without 
a democratic element, equality and democracy of themselves 
are far from constituting liberty. They may be the worst of 
despotisms : the one by annihilating individuality, as the com- 
munist strives to do ; the other — if it means democratic abso- 
lutism — by being real sweeping power itself — not power lent, 
as that of the monarch always must be — power without per- 
sonal responsibility. It acts ; but where is the actor, who is 
responsible, who can be made responsible, who will judge ? 

It is with reference to this rule, and this mistaken view of 
liberty, that one of their wisest, best, and most liberty-loving 



AND SELF-GOVERNMENT. 283 

men, Mr. Royer Collard, has said: 1 "It is nothing but a 
sovereignty of brute force, and a most absolute form of abso- 
lute power. Before this sovereignty, without rule, without 
limit, without duty, and without conscience, there is neither 
constitution nor law, neither good nor evil, nor past nor 
future. The will of to-day annuls that of yesterday, without 
engaging that of to-morrow. The pretensions of the most 
capricious and most extravagant tyranny do not go so far, 
because they are not in the same degree disengaged from all 
responsibility." 

Where any one, or any two, or any three, or any thousand, 
or any million, can do what they have the mere power to do, 
there is no liberty. Arbitrary power does not become less 
arbitrary because it is the united power of many. 

Napoleon said : " The French love equality ; they care 
little for liberty." 2 Napoleon certainly mistook the French, 
and mankind in general, very seriously in some points, as all 
men of his stamp are liable to do ; there are some entire in- 
stincts wanting in them ; but we fear that he was right in this 
saying with reference to a large part of the French people. 
Present events seem to prove it. 3 

This equality is again very generally mistaken for uniform- 
ity, so that it would naturally lead of itself to centralization, 
even if the French had not contracted a real passion for cen- 
tralization ever since the reigns of Richelieu and Louis XIV. 
It has increased with almost every change of government. It 
is the love of power carried into every detail, and therefore the 



1 Royer Collard's Opinion, of October 4, 183 1. 

2 Words spoken to Lord Ebrington, in his exile on the island of Elba. 

3 Rousseau expressed the political idea of equality, the aversion to representa- 
tive governments and institutional politics, and the disapproval of private prop- 
erty, boldly and clearly in his Social Contract, a masterly written work, which 
has exercised an incalculable effect on French affairs. It was the favorite book 
of the leading men of the first revolution, and continues largely to influence the 
French. Yet Rousseau only pronounced more clearly, and boldly carried farther, 
the ideas of unity, concentration, and equality, that had been gradually growing 
stronger in the French mind long before him. They can be traced not only in 
politics, but in all spheres. 



284 ON CIVIL LIBERTY 

opposite of what we call self-government; 1 it is the exceeding 
partiality of the French for logical neatness and consistency 
of form, strikingly manifested in the fact that the word logical 
is now universally used in French for consistency of action or 
natural sequence of changes — it is this mathematical enthu- 
siasm, if the expression be permitted, applied to the vast field 
of political practice. 

It seems that we can explain the cry of Republique demo- 
cratique et sociale, so often repeated by the most advanced of 
the democrats during the late government without a king, only 



1 I have given some remarkable instances of interference on the part of modern 
absolute governments, in the Political Ethics. I shall add the following recent 
instance : I am sure that no one-accustomed to Anglican self-government considers 
such details trivial, however well he may be acquainted with the fact in general, 
that government in those countries tries to guide, direct, manage, initiate, and 
complete everything that seems of any importance. Some years ago a German 
king ironically called, in a throne speech, constitutions Paper Providences. The 
expression was every way most unfortunate. It seems to me that it is these very 
governments of centralized mandarinism that play at Providence, in which they 
closely resemble the communists, as indeed all absolutism contains a strong 
element of communism. 

The following is taken from the Paris Moniteur, the French official paper, or 
organ of government, in October, 1852. I do not give the entire decree, but the 
principal articles : 

There will be published, under the care of the minister of public instruction, 
a general collection of the popular poetry of France, either to be found in manu- 
script in the libraries, or transmitted by the successive memories of generations. 

The collection of the popular poetry of France will consist of 

Religious and warlike songs ; 

Festive songs and ballads ; 

Historical recitals, legends, tales, satirical songs. 

The committee of language, history, and the arts of France, connected with 
the ministry of public instruction, is charged with the selection of all pieces sent 
for inspection, and to determine which are to be received, to regulate them, and 
give the necessary commentaries. 

A medal is to be given to those persons who, by their discoveries and re- 
searches, particularly contribute to enrich the collection, which will be called 
Recueil des Poesies Populaires. 

It is unnecessary to remind the reader that, if this undertaking has been dic- 
tated by any desire of promoting literature, a political motive has been at least 
equally strong, according to the old saying : Give me the ballad-making, and I 
will rule the people. 



AND SELF-GOVERNMENT. 



285 



on the ground of equality being considered the foundation of 
all liberty. Indeed, it is considered by many a requisite which 
lies beyond liberty, and the banners of socialists bore the 
motto Equality and Fraternity, or Equality, Fraternity, In- 
dustry, the word Liberty having been altogether dropped from 
that once-worshipped legend : Liberty, Fraternity, Equality. 
I have never been able to find an explanation of the watch- 
word, Democratic and Social Republic, given by those who 
use it, but it seems to bear no other interpretation than this : 
Democratic republic signifies that republic which is founded 
upon the total political equality of its members, carried to its 
last degree, and social republic must mean a republic based on 
equality of social condition. Whether this be possible, or de- 
sirable if it were possible, cannot occupy us at present. The 
frequent use of this term by a very large part of the French 
nation has been mentioned here as one of the evidences show- 
ing the prevailing love of mere equality among the French. 

Still, it is not easy to say what the French exactly mean by 
equality, or what Napoleon meant by it when, at St. Helena, 
he said that he had given equality to the French, and that this 
was all he could give them, but that his son would have given 
them liberty. How he knew that his son would have done it, 
we certainly do not know ; but how did he give them equality, 
when it was he who re-established the ancient orders of no- 
bility ? So there are, in spite of all the love of equality, no 
people who more universally love uniforms and an order with 
a ribbon, than the French. This inconsistency is a political 
misfortune. In theory, equality and democracy, carried to 
the utmost, are demanded, while the habits, tendencies, and 
desires of the people have a different bent. There is in this 
respect, it seems, an intellectual and psychical dualism with 
antagonistic elements in France, similar to that which we 
frequently observe in individuals in regard to liberty and 
despotism. 1 



1 Nothing is more common than men with a decided intellectual bent towards 
freedom and an equally decided psychical inclination towards absolutism. 



286 ON CIVIL LIBERTY 

It is evident how nearly allied this desired equality and uni- 
formity, together with universal but uninstitutional suffrage, 
and that kind of sovereignty which is in addition confounded 
with absolute power, are to those political extravagances 
which strike our eyes in present France. 

They are the natural effects of the one or the other, strictly 
carried out, however inconsistent they may appear with one 
another. Equality absolutely carried out leads to communism; 
the idea of undivided sovereignty leads to Mr. Girardin's con- 
ception of having no legislature, no division of power — nothing 
but a succession of popular sultans ; the idea of seeking all 
liberty in universal suffrage alone leads with the greatest ease 
to a Napoleon — a transfer of everything to one man, and of 
all future generations to his descendants, thus actually real- 
izing the fearful theory of Hobbes; and the absence of a love 
of institutions leads to a remarkable tendency to worship one 
man, to centralization, or, in some cases, to the very opposite 
— a desire to abolish all government and establish the "sove- 
reignty of the individual." All extremes in politics meet. 

There is no greater error than the idea of making the vote 
or election the sole basis of liberty — of believing that, with 
the establishment of an extensive or universal suffrage, we 
set up liberty, however true it is that liberty stands in need of 
election. Absolutism may rest on this as on any other basis. 
The deys of Algiers were elective, but, once elected, they were 
unbounded masters, in the oriental sense of the term. The 
generals of nearly all, I believe of all, the monastic orders 
are elective, but, once elected, the vow of obedience of every 
monk, and the distinct renunciation of liberty, make the gen- 



Their intellect admires the grandeur of liberty, their reason acknowledges the 
principles of justice; their desires are for free action, and yet their souls resent 
every opposition. They appear, therefore, often as hypocrites, without being 
such in reality. There is a dualism within them whose two elements are at war, 
very similar to that which, without hypocrisy, makes many persons sincerely 
preach peace and charity abroad, but act at home as domestic tyrants. 

History is full of such characters, and we have had an exhibition of it in one 
of our presidents. Happily, our institutional system did not allow a very wide 
play of such a disposition. 



AND SELF-GOVERNMENT. 



287 



eral master. No order, no human association, has carried the 
doctrine of absolute obedience to a # more frightful extent than 
the Jesuits, whose founder demands that the inferior shall be 
in the hands of the superior ut baculum, like a mere staff, and 
whose distinctly expressed principle it is, that every command 
of the superior shall be like a commandment from on high, 
even though sin be commanded. Yet the government of the 
order is founded on election. Mr. Guizot, in speaking of the 
monastic orders, 1 says: "As regards the political code of the 
monasteries, the rule of St. Benedict offers a singular mixture 
of despotism and liberty. Passive obedience is its funda- 
mental principle; at the same time the government is elective; 
the abbot is always chosen by the brothers. When once the 
choice is made, they lose all liberty, they fall under the abso- 
lute domination of their superior. Moreover, in imposing 
obedience on the monks, the rule orders that the abbot con- 
sult them. Chap. iii. expressly says, 'Whenever anything of 
importance is to take place in the monastery, let the abbot 
convoke the whole congregation, and say what the question 
is ; and after having heard the advice of the brothers, he shall 
think of it apart, and shall do as appears to him most suitable.' 
Thus, in this singular government, election, deliberation, and 
absolute power were coexistent." 

The pope is an elective monarch over the States of the 
Church. No one has ever maintained that on this account 
liberty has a home in that country. Nor would the case be 
altered if the pope were elected, not by the college of cardinals, 
but by a more numerous body of electors, or by all male 
adults, or even by the whole population, male and female. 
The high priest or president in the polity of that stupendous 
outrage called Mormonism is elective, and the Mormons 
themselves call their government a theo-democracy ; 2 yet a 

1 History of Civilization in France, lect. xiv., sub fin. 

2 Theo-democracy does not contain a contradiction, however novel and, at 
first sight, startling the term may appear to us. If democracy necessarily ex- 
pressed the idea of liberty, then indeed the name theo-democracy would be 
senseless, for all theocracy or sacerdotal rule is a negation of civil liberty. It 
immures in do^ma. 



288 ON CIVIL LIBERTY 

greater absolutism has never existed, indeed, we may fairly 
say, none equal to it. It unites democracy and communism, 
which is absolutism, with continuous and permanent revela- 
tions of the deity, not only on dogmatic points, but on every 
measure of weight. It is a jus divinum such as the ancients 
did not even dream of when they derived their kings from the 
loins of the gods, and it is a communism such as Mohammed 
never dared to embody in his politico-religious system. 

The unicameral system must be mentioned here as a fea- 
ture of Gallican liberty, because it is held by all those persons 
who seem to be the most distinct enunciators of this species 
of liberty, a necessary requisite if they allow the principle of 
representation at all. They consider that the bicameral system 
of representatives is aristocratic, or else, as one of their writers 
expresses it, that two houses can never be reconciled except 
by money or by blood. The partiality for a legislature of one 
house is a necessary consequence of the French idea of unity 
in the government or the unity of the state, and actual abhor- 
rence of confederacies. 

The Anglican wants union in his general government ; the 
Gallican, unity. He wants his government to be a solid unit. 1 



In a similar manner, and with equal justice, the Rev. Mr. Payne says of the 
Grebo tribe, at Cape Palmas, that their constitution is patriarchal, with a purely 
democratic government. His account is contained in " The Report of the Rev. 
R. R. Gurley, who was recently sent out by the government to obtain informa- 
tion in respect to Liberia," published by the senate of the United States, in 1850, 
thirty-first congress, first session, executive document No. 75. The political 
philosopher can hardly read a more interesting paper than this. 

1 The extent to which this idea is occasionally carried out is almost incon- 
ceivable to us, accustomed as we are to so essentially different a system and train 
of political thoughts. A few years ago the minister of the interior had given 
some new directions regarding the quarantine regulations. They were more in 
conformity with the opinions of scientific men on the contagiousness of the 
plague. The people of Marseilles, who still keep the terrible plague of the last 
century in vivid remembrance, disapproved of these orders from the central 
government, and a meeting of certain persons was called together. Whereupon 
most newspapers took part with the government, and charged the citizens, with 
whom this little germ of self-government had shown itself, with the hideous sin 
of federalism, the crime for which many had lost their heads in the first revolu- 
tion. This was in the times of the so-called republic, before the second of 



AND SELF-GOVERNMENT. 289 

He wishes to deprive every institution, as much as possible, 
of the principle of self-government and independence, and the 
only question which remains is, who shall be the ruler and re- 
ceive that power which government gives ? To this subject, 
as to many others on which I have touched, we shall return 
when I shall treat more fully of the institutional government 
and its opposite. 

ft is not likely that people who speak with derision of par- 
liamentary government, by which nothing is meant but a 
government in which a deliberative and representative legisla- 
ture forms an integral part, and of parlementarism, as the new 
phrase is, would treat the legislature as an institution with 
self-government and a necessary degree of independence. Ac- 
cording to their idea, the safeguards which we believe are 
found in a mutually moderative contrivance ought to be done 
away with. Speedy energy, absence of opposition and of 
results which are the products of mutual modification and 
mutual toleration, unity of ideas, not consisting in collective 
effects but in a merely logical carrying out of some abstract 
principle; these are the main objects, according to Gallican 
views. The United States are far from being favorably looked 
upon by the French people, and they are viewed with real ill 
will by the Red Republicans on account of our decentralization. 
Rousseau seems to have harbored a positive ill will toward the 
representative system, and his followers have a still stronger 
antipathy against federal governments, and self-government 
which may be said, in one point of view, to be a minute 
application of the federative principle. 

The Spaniards, the Portuguese, the Neapolitans, have made 



December, and the few papers which took side with the citizens were legitimist 
papers, thus furnishing, by the way, another instance of the fact that all sorts of 
things are possible under peculiar circumstances. It was the Tories who resisted 
the septennial bill abolishing triennial parliaments in 1716; it was the Jesuits 
who first enunciated the doctrine of the sovereignty of the people, in order to 
get a fulcrum against heretical monarchs ; it was a Spanish Jesuit who defended 
regicide under Philip II. ; and here we have legitimists, working for a descend- 
ant of Louis XIV., who took side for a principle of self-action against the central 
government ! 

19 



290 ON CIVIL LIBERTY 

the trial of copying the French, but have succeeded with the 
system of one house no better than the French themselves, 
and have passed over to the bicameral legislature, or abolished 
representation altogether. 

There are governments in which the medieval principle of 
estates still exists. But it may be fairly maintained that this 
is a remnant of the middle ages, at variance with the changed 
state of modern society. Nowhere do they present themselves 
as a system of civil liberty — it is rather a system (and rarely 
even this) of privileges or liberties. In Sweden the estates 
still exist, namely the clergy, nobility, citizens, and peasants, 
and a high degree of liberty is enjoyed. But in examining 
the constitution of Sweden we cannot fail to observe that 
modern liberty is rather superinduced or engrafted on the 
system of states, than evolved out of it. The constitution of 
Norway, on the other hand, is clearly of the character of that 
liberty which we have designated as Anglican. 1 

Frenchmen would probably point out their national guards 
as an element or guarantee of Gallican liberty. They were 
established during the first revolution, and have always been 
diminished in number and restricted in power in those periods 
in which the government made war upon liberty. They can- 
not, however, be considered a valid guarantee in so concen- 
trated a government as the French, and in a country in which 
the army is so gigantic. It was chiefly as a popular force 
against the king, that the national guards appeared as an 
important element of liberty in the first French revolution; 

1 [In 1866 the four estates of Sweden were converted into two houses, of 
which the first or upper consists of one hundred and twenty-five members, who 
represent the noblesse, other landed proprietors, and the clergy, and are elected 
by landsthings or provincial assemblies, and the second, of one hundred and 
ninety-one members, represents the towns and rural districts. The term of office 
of the upper house is, we believe, nine years. In Norway the storthing, or legis- 
lature, chosen by electors chosen by the qualified citizens, holds office for three 
years, and divides itself on assembling into two houses, — the odalsthing, having 
three-quarters of the whole body for its members, and the lagthing, composed 
of one-quarter. All projects of laws or acts originate in the odalsthing ; and if 
the lagthing rejects them twice over, the storthing meets and legalizes the project 
only by a vote of two thirds.] 



AND SELF-GOVERNMENT. 



291 



but they cannot be called a real guarantee of civil liberty, 
especially when no institutional guarantees of self-government 
exist. 

It must have plainly appeared that liberty seems to me effi- 
ciently secured only by the Anglican system. Other attempts 
in modern times have been but very partially successful, and of 
these there are only a few. The question arises at once, are 
those persons in the main correct who roundly assert that no 
people are fit for liberty except the Anglo-Saxons? For thus 
they call the English nation, and those who have descended 
from it. Or is it correct to say that whoever wishes to enjoy 
liberty must copy the main institutions of Anglican liberty ? 
On these and some cognate subjects so many startling errors 
exist, that the remarks on the different types of liberty may 
be appropriately concluded by some observations on these 
misconceptions. They have a practical bearing, and influence 
large masses. 

It is doubtless true that the greatest amount of liberty is at 
present enjoyed by the Anglican race, whose institutions and 
guarantees seem to form the only extensive and consistent, as 
well as practical, system of civil liberty, the only one in which 
liberty and law have become firmly interlocked, and by which 
it has thus become possible to establish, as a practical reality, 
what Tacitus held to be impossible — the union of libertas 
and imperium. It is true also that the Anglican division has 
had a greater influence than any other tribe on the whole white 
race, and that other nations seem to have enjoyed liberty or 
advanced on the path of freedom, in recent times, in the same 
proportion only in which they have adopted the main principles 
and chief institutions elaborated by this portion of our race ; 
and it is equally true that we enjoy so great an amount of free- 
dom because we are accustomed to liberty and a government 
of law, and because our race has perseveringly developed it for 
centuries. But it must not be forgotten, on the one hand, that 
other nations and races may possibly develop certain princi- 
ples in a manner peculiar to their character and circumstances; 
and, on the other hand, that it is the rule of all spreading 



292 ON CIVIL LIBERTY 

advancement of humanity that the full amount of what has 
been gained by patience, blood, or fortunate combinations is 
transferred to other regions and distant tribes. 

The missionary — from St. Paul, when he went to Rome, to 
those who now embark for the Pacific — does not demand the 
neophyte to pass through the dispensations of the Old Testa- 
ment, and all the experience of the early church, before he 
begins to teach the dispensation of the New Testament, and 
to establish churches according to the government and the 
theology which exist at his home. 

There are many persons who pretend to admire liberty, but 
withhold it from the people on the plea that they are not pre- 
pared for it. Unquestionably, all races are not prepared for 
the same amount of liberty, and many are not yet fit for any 
real liberty at all. But two things are certain, that all nations, 
and especially those belonging to our own civilized family, 
prove that they are prepared for the beginning of liberty, by 
desiring it and insisting upon it, and that you cannot other- 
wise prepare nations for enjoying liberty than by beginning to 
establish it, as you best prepare nations for a high Christianity 
by beginning to preach it. 

There are persons even among ourselves who, observing how 
many and sad failures have taken place with other nations, 
bluntly assert that none but the Anglo-Saxons are fit for 
liberty, and that it cannot be enjoyed by others. That some 
nations are fitter for the elaboration or peaceful enjoyment of 
liberty than others, according to their character, which makes 
them perhaps less fit to excel in some other branches of civili- 
zation, cannot be denied. So was the Greek more fit for the 
fine arts than the Roman. That some tribes appear on the 
stage of history, act their part, and vanish again without 
having made any progress in civil liberty, or ever having be- 
come conscious of it as an element of advancing civilization, is 
equally true. But do Ave hold any nation, once fairly entered 
upon the path of civilization, unfit for science or the arts, or a 
stable government, or a literature, or for Christianity ? That 
in which m n rises highest, and manifests himself most intel- 



AND SELF-GOVERNMENT. 



293 



lectually — Christianity — is believed to be meet for all; but 
should liberty be restricted to a tribe or a single nation ? It, 
is not likely. I have admitted that some nations are fitter 
for the one or the other. All will not equally cultivate all 
branches ; each cannot originate every branch ; but all will 
partake of every element of civilization ; and while it may be 
proper for the historian to say such a nation has not been able 
to act with originality in this or another branch, it is not be- 
coming to the philosopher to say that such a portion of our 
race will not be able to do so. When the Greek scholars from 
Constantinople carried the last embers of Grecian civilization 
and intellectuality over the West; when the restoration of letters 
prepared the way for still higher achievements, no one said 
that the English, or French, or Germans were unfit to partake 
in the humanizing blessing, although the Italian soil, still bear- 
ing the effects of former culture, was the first to bring forth 
delectable fruit. When Gothic architecture had been elabor- 
ated by some, it was not believed that other nations could not 
raise cathedrals in the same style, and enjoy it and develop it 
in their own way. 

On the other hand, we meet with the very reverse. Angli- 
can liberty is opposed on the ground that it is not indigenous, 
and that it is both inexpedient and unworthy to adopt it. 
Large numbers in France, both communists and imperialists, 
treat "parliamentarism" in this manner; and the emperor 
said, when he had assembled the senate and the legislative 
corps, soon after the restoration of the empire, that France 
for "the first time enjoyed the happiness of possessing in- 
stitutions exclusively French and original." l As to the 



1 This idea has been, since, carried much farther. A large number of persons, 
and, it would seem, all imperialists, love to dwell upon the idea that imperial- 
ism represents Latin civilization, opposite to Teutonic unwieldy, uncentralized, 
barbaric freedom. When thus Latinism is taken as a distinctive mark, Roman 
imperialism is meant, not of course Republican Roman self-government. The 
French, in trying to renovate Latinism, seem to fall, as to principle, into an 
anachronism not dissimilar to that into which the Germans fell as to language 
when they officially called their empire, down to its dissolution, the Holy Roman 
Empire of the Germans. 



294 ON CIVIL LIBERTY 

originality, we would only observe that they are fac-similes 
of what Napoleon I. had established, and that he copied the 
senate, as he did the eagle, the title and idea of emperor, the 
name of legion, of prefect, from Rome, unfortunately at her 
worst period, for the Roman senate during the better time was 
part of the proud Senatus Populusque Romanus; and the 
corps legislatif, if there be any element of a representative 
legislature in it, is not of French origin; if it be a mute body, 
however, there is no originality in it either. Even if it were 
as the emperor proclaimed it, there would be nothing in it to 
be rejoiced at. The law of all spreading civilization is emigra- 
tion, transmission, and addition. Ought the French to reject 
the Grecian orders of architecture because they are not 
French, or ought our medical students not to go to Paris 
because the French science of medicine is not ours ? Has 
modern music been rejected by all the nations except the 
Italians and the Germans because it is of native growth with 
these nations ? Ought the French to reject saving-banks be- 
cause they were first established and developed in England, 
and ought the English to discard Jacquard's loom because 
invented in France ? 

The son of Sirach said, that wisdom was hovering like the 
clouds until it "took root in an honorable people" 1 — the 
Israelites. It is thus with all wisdom, all great ideas and 
comprehensive systems. They take root with " an honorable 
people," that develops them. After that come the winds of 
heaven and carry the seeds far and about. Patriotism and 
national vanity are not the same. Patriotism is excellent so 
long as it is the love of its own to such a degree that it is 
ready to make any sacrifice and to do all for its benefit; it is 
not a virtue when it consists in being enamored with itself. 
Narcissus is not the symbol of patriotism, but Lycurgus and 
Solon are, travelling far in order to gather knowledge for their 
own country. 

At all great and distinct periods of modern history, there 



1 Ecclesiasticus, xxiv. 12. 



AND SELF-GOVERNMENT. 29$ 

are a general idea and certain adequate forms pervading the 
whole. Such was the papal period at the beginning of the 
middle ages ; such was the universal feudal system ; such the 
period of universities springing up everywhere ; such the 
periods of art; such the periods of Abelard and scholastic 
philosophy ; such the rising of free cities in all active parts of 
Europe ; such the ardor of maritime discovery and enthusiasm 
for " cosmography ;" such the period of monasteries ; such 
Protestantism; and such is, I believe, the present period of 
civil liberty, which, for centuries to come, will be essentially 
of the Anglican type. To learn liberty, I believe that nations 
must go to America and England, as we go to Italy to study 
music and to have the vast world of the fine arts opened to 
us, or as we go to France to study science, or to Germany 
that we may learn how to instruct and spread education. It 
was a peculiar feature of antiquity that law, religion, dress, 
the arts and customs, that everything in fact, was localized. 
Modern civilization extends over regions, tends to make 
uniform, and eradicates even the physical differences of tribes 
and races. 1 Thus made uniform, nations receive and give 
more freely. If it has pleased God to appoint the Anglican 
race as the first workmen to rear the temple of liberty, shall 
others find fault with Providence ? The all-pervading law of 



1 The mutual influence of different literatures is daily extending. Take as an 
instance the literature of England, France, Germany, and the United States, 
and add the mutual influence of the journals of these nations. Then consider 
how many of the elements of civilization are not national, but common to all — 
the alphabet, the numeric signs, with the decimal system, musical notation and 
music itself, commercial usages and bookkeeping, international law, social inter- 
course and laws of politeness; the visiting-card, the railway, the steamboat, the 
post-office, the institution of money, the bill of exchange, insurance — indeed, it 
is impossible to enumerate all the agreements of nations belonging to our race. 
I shall only add the dress, the furniture, and even cookery. 

The most recent and a choice illustration of progressive uniformity of our race 
and its civilization, is the adoption of Commander Maury's, U.S.N. , plan of a 
uniform maritime observation and record, adopted by many governments in 
consequence of the naval congress at Brussels, in 1853. May a uniform standard 
of value soon follow. The wide-spread dollar or scudo has prepared the way 
for it. A 



2 g6 ON CIVIL LIBERTY 

civilization is physical and mental mutual dependence, and 
not isolation. 

Many governments deny liberty to the people on the ground 
that it is not national ; yet they copy foreign absolutism. 
There is doubtless something essential in the idea of national 
development, but let us never forget two facts : Men, however 
different, are far more uniform than different ; and most of the 
noblest nations have arisen from the mixture of others. 



AND SELF-GOVERNMENT. 297 



CHAPTER XXV. 

THE INSTITUTION. ITS DEFINITION. ITS POWER FOR GOOD 

AND EVIL. 

It has been shown that civil liberty, as we understand and 
cherish it, consists in a large amount of individual rights, 
checks of power, and guarantees of self-government. We have 
more or less fully indicated that self-government, in the sense 
in which we take it, and in connection with liberty, consists in 
the independence of the whole political .society, in a national 
representative government and local self-government, which 
implies that even general laws and impulses are carried out 
and realized, as far as possible, by citizens who, in receiving 
an office, be it by election or appointment, essentially remain 
citizens, and do not become members of a hierarchy of place- 
men. 1 We have seen that self-government, in general, requires 



1 At a sumptuous ball, which the city of Paris gave, in the year 1851, to the 
commissioners of the London Exhibition, I was sitting in a corner and reflecting 
on the police officers in their uniforms and the actual patrols of the military 
pompiers in the very midst of the festive and crowded assemblage, when I was 
introduced to one of the first statesmen of France and a liberal member of the 
national assembly. He had been at London, to view the exhibition. It was the 
first time he had visited England. " Do you know," said he, " what struck me 
most — far more than the exhibition of works of art and industry ? It was the 
exhibition of the civisme anglais (this was the term he used) in the London 
police." It may be readily supposed that an American citizen turned his face 
toward the speaker, to hear more, when the Frenchman continued : " I am in 
earnest. The large number of policemen, with their citizen appearance, although 
in uniform, seeming to be there for no other purpose than to assist the people — 
and the people ever ready to assist them — this is what has most attracted my 
attention. Liberty and the government of law are even depicted in their police, 
where we should seek it least. What is it that strikes you most in coming 
here?" 



298 ON CIVIL LIBERTY 

that there be an organism to elaborate and ascertain public 
opinion, and that, when known, it shall pass into law, and, 
plainly, rule the rulers ; that government interfere as an ex- 
ception, and not as the rule ; and that, on the other hand, 
self-government neither means self-absolutism, nor absence of 
rule, but that, on the contrary, liberty requires a true govern- 
ment. A weak government is a negation of liberty; it cannot 
furnish us with a guaranteeing power, nor can it procure 
supremacy for public will. In other spheres it may be true 
that license is exaggerated liberty, but in politics there can be 
nothing more unlike liberty than anarchy. 

We have still to ascertain how this system of civil liberty 
is to be realized. Liberty cannot flourish, nor can freedom 
become a permanent business of actual life, without a perma- 
nent love and a habit of liberty. How is the one to be engen- 
dered, and the other to be acquired? 

There is no mathematical formula by which liberty can be 
solved, nor are there laws by which liberty can be decreed, 
without other aids. We gain no more by throwing power un- 
checked into the hands of the people. It remains power, and 
is not liberty, and people still remain men. Flattery does not 
change us, for we are all 



" The American," I replied, " in visiting the continent of Europe, is most 
impressed by the fact that the whole population, from Moscow to Lisbon, seems 
to be divided into two wholly distinct parts — the round hats, the people, and the 
cocked hats, the visible government. The two layers are as distinct as the hats, 
and the traveller sees almost as many of the one form as of the other." 

There are large police establishments in all European states. Densely-peopled 
countries require them. The different spirit and organization, however, of these 
establishments are most characteristic. Nothing, perhaps, shows more the char- 
acter of a citizen-government in England than the wide-spread institution of the 
police, which has developed itself, under Sir Robert Peel, out of the ancient 
constable. It has great power; it has preventive, detective, and custodial 
authority; yet it is supported by the citizens, and no one fears that it ever will be 
used as an institution of political espionage and denunciation — as delatores of old 
and mouchards of modern times. It is strictly under the public law, and that 
implies under publicity. There is a whole literature on this subject, but I know 
of no brief paper exhibiting so well its essential character as the seventh para- 
graph of Mittermaier's English, Scottish, and American Penal Processes. 



AND SELF-GOVERNMENT. 299 

" Obnoxious, first and last, 
To basest things," z 

and thus flattery is no foundation for liberty. Each one of us 
may be declared a sovereign, as every Frenchman was desig- 
nated in a solemn circular, 2 by the provisional government; or 
the people may be called almighty — le peuple tout-puissant — 
as in the midst of loathsome political obscenity they were 
termed by the dictatorial government when they were expected 
and led to vote for a new emperor, and thus by an act of 
omnipotence to extinguish every vestige of their power. They 
were asked to divest themselves of this very omnipotence, 
which nevertheless is exclusively claimed for the nation as 
inherent in its own nature, and to submit their omnipotence 
to a still greater power of one man. Nothing of all this is 
liberty. Self-immolation, even where it is an actual and not a 
theoretical act of free agency, is not life. 

Enthusiasm is necessary for liberty, as for every great and 
noble work, but enthusiasm comes and goes like the breezes 
of the ocean. How shall they be used for the positive interests 
of the navigator? Enthusiasm is not liberty, nor does the 
reality of liberty consist in an sesthetical love of freedom. The 
poet may be as much the priest of liberty as he is the seer of 
love, but poetry is no more the thing it sings than theory is 
the deed, or ethics the character of man. 

Education has been considered by many as the true basis 
of popular liberty. It is unquestionably true, and proudly ac- 
knowledged by every lover of modern popular liberty, that a 
wide-spread and sound education is indispensable to liberty. 
But it is not liberty itself, nor does it necessarily lead to it. 



1 Paradise Lost, book 9, line 170. 

2 In a circular, sent by the provisional government all over France before the 
general election for the national constituent assembly, in 1848, was this sentence: 
" Every Frenchman of the age of manhood is a political citizen; every citizen is 
an elector ; every elector is a sovereign. There is no one citizen who can say to 
another : ' You are more of a sovereign than I.' Contemplate your power, pre- 
pare to execute it, and be worthy of entering on the possession of your kingdom." 
The author of these phrases is Mr. de Lamartine, who says, in his Revolution of 
1848: " The x-eign of the people is called the republic." 



300 ON CIVIL LIBERTY 

Prussia is one of the best educated of countries, but liberty 
has not yet found a dwelling-place there. The Chinese govern- 
ment is avowedly based upon general education and democratic 
equality in the hierarchy of officers, but China has never made 
a step in the path of liberty. Education is almost like the 
alphabet it teaches. It depends upon what we use it for. 
Many despotic governments have found it their interest to 
promote popular education, and the schoolmaster alone cannot 
establish or maintain liberty, although he will ever be acknowl- 
edged as an efficient and indispensable assistant in the cause 
of modern freedom. Liberty stands in need of character. 

How then is real and essential self-government, in the ser- 
vice of liberty, to be obtained and to be perpetuated ? There 
is no other means than a vast system of institutions, whose 
number supports the whole, as the many pillars support the 
rotunda of our capitol. They may be modest in their appear- 
ance, and even unseen by the passer-by, as those pillars are,' 
but they are nevertheless the real support. 

Let us then consider the nature of institutional liberty more 
closely. In order to appreciate this subject, it will be desirable 
to inquire first into the nature of institutions in general. 

According to the highest meaning which the term has grad- 
ually acquired, an institution is a system or body of usages, 
laws, or regulations of extensive and recurring operation, con- 
taining within itself an organism by which it effects its own 
independent action, continuance, and generally its own farther 
development. Its object is to generate, effect, regulate, or 
sanction a succession of acts, transactions, or productions of a 
peculiar kind or class. The idea of an institution implies a 
degree of self-government. Laws act through human agents, 
and these are, in the case of institutions, their officers or 
members. 

We are likewise in the habit of calling single laws or usages 
(which are laws of spontaneous growth) institutions, if their 
operation is of vital importance and vast scope, and if their 
continuance is in a high degree independent of any interfering 
power. These two characteristics establish a close affinity 



AND SELF-GOVERNMENT. 



301 



between such laws and institutions proper as they have been 
just defined. Thus, we call marriage an institution in consid- 
eration of its pervading importance, its extensive operation, the 
innumerable relations it affects, and the security which its con- 
tinuance enjoys in the conviction of almost all men, against 
any attempts at its abolition. Indeed, we generally mean by 
the term Institution of Marriage, pretty much the institution 
of the family, that is, the family as a community sanctioned 
and fostered by the law, by authoritative usages, and by 
religion — the cluster of laws and usages, social, political, and 
religious, which relate to this well-defined community. 

It always forms a prominent element in the idea of an insti- 
tution, whether the term be taken in the strictest sense or not, 
that it is a group of laws, usages, and operations standing in 
close relation to one another, and forming an independent 
whole with a united and distinguishing character of its own. 

A system of laws very often consists of a variety of systems, 
each enjoying a proportionate degree of self-government, as a 
general organism is composed of many organs with distinct and 
peculiar functions of their own, although working in unison 
and according to the principles and regulative laws of the 
general organism. We have many institutions which consist 
of a number of institutions either of the first mentioned or 
second sort; and, as institutions may exist in all the great 
spheres of human action, it naturally results that there are in- 
stitutions of the greatest variety in character and extent. A 
bank, parliament, a court of justice, the bar, the church, the 
mail, a state, are institutions, as well as the Lord's supper, a 
university, the Inquisition, all the laws relating to property, 
the sabbath, the feudal system. The Roman triumph, the 
Hindoo castes, the bill of exchange, the French Institute, our 
presidency, the New York tract society, the Areopagus or 
the Olympic games, an insurance company, the janizaries, 
the English common law, the episcopate, the tribunate, the 
"captainship" of a fishing-fleet on the banks, "the crown," 
the German book-trade, the Goldsmiths' Company at London, 
our senate, our representatives, our congress, our state legis- 



302 ON CIVIL LIBERTY 

latures, courts of conciliation, the justiceship of the peace, the 
priesthood, a confederacy, the patent, the copyright, hospitals 
for lunatics, estates, the East India Company — all these and 
thousands more are or were institutions in the one or the other 
adaptation of the term. Whether they are good or bad, ex- 
pedient or unwise, human or divine, has nothing to do with 
the distinctive character of an institution as such. 

" The School," that is to say, the whole school system, as 
well as the modern national army, in Prussia, have been called 
institutions, when it was desired to express the idea that they 
are establishments of vast importance and that they enjoy a 
supposed degree of independent vitality. Baron Bunsen, in 
his Hippolytus, calls the book of common prayer a " national 
institution." 1 

The noun Institution is, indeed, formed of the verb to Insti- 
tute, but it does not, on that account, express, as noun, the 
action or the effect of that which constitutes the meaning of 
the verb. The sense of the noun frequently diverges from 
that of the verb, in all languages, and especially so in the 
English. 2 We institute an inquiry ; but an inquiry is not an 



1 Vol. iii. p. 293. — A member of the late French national assembly, speaking ot 
the enormous California lottery, which was then in its full ruinous operation in 
France, used the expression : " This is not a lottery ; it is a series of lotteries ; I 
ought to say an institution of lotteries." 

The exaggeration was carried farthest when an English newspaper called the 
Duke of Wellington an institution. We see, however, through the exaggeration, 
the original sense universally attributed to the term. 

2 The word is a finished and a given thing ; the idea is in a constant state of 
expansion or contraction, far exceeding the formative powers even of the most 
perfect language, so that frequently a whole class of words derived from the same 
root retains little in. common but an association of ideas, which often almost 
vanishes. The history of the changing meaning of man's words is instructive, 
and equally so the history of the changing word. I need only allude to such re- 
markable words as Stare, Status, Statute, Stand, Establishment, Stabilis, Estate, 
and the whole history through which the meaning of the word State has passed 
and is still passing on the one hand, and the many branches such as Stable, Sta- 
tion, Statistics; or we may take Civis, Civitas, Civilis, Civilitas, Civility, Civil 
(in its two distinct terms,) Civilization, Citizen; Nascor, Nation, National; Pop- 
ulus, Publicus (for populicus,) Public, People, Popular; Gignere, Genus, Gens, 
Gentile, Gentle, Genteel, Gentleman, with the different meanings through which 



AND SELF-GOVERNMENT. 303 

institution ; and, on the other hand, there are many institutions 
which have never been instituted. They have grown. 

This class of institutions forms in a certain point of view 
the most important, as will be admitted when we consider that 
the jury, systems of common law, the British parliament and 
our bicameral systems of the legislature, most governments 
and the states themselves, are grown institutions. 

The English language has but one term for both, the cres- 
cive institutions, as they might be termed, and the instituted 
or enacted institutions, such as a corporation, congress, or our 
legislatures ; whose institutors are the people enacting the 
constitutions. Grown or spontaneous institutions are not ill 
defined or loosely distinguished from one another on that 
account ; they may be as individualized as a shady tree in the 
forest ; and enacted or contrived institutions are not confined 
and narrow on that account. They may be as extensive in 
action as an Atlantic steamship. The speakership is a well- 
defined crescive institution ; the supreme court of the United 
States is a vast enacted institution. 

Most of the institutions which owe their origin to spon- 
taneous growth have become in course of time mixed institu- 
tions. Positive legislation has become mingled with self-grown 
usage, as is the case with the institution of property, the jury, 
the bill of exchange, the Hindoo castes, money. 

It is for the purpose of comprehending the grown as well 
as the established institutions, that the words " usages, laws, 
or regulations " have been employed in the definition at the 
head of this discussion. 

Dr. Thomas Arnold, whose name few mention without 
veneration, says, at the beginning of his Lectures on History : 
" I would first say that by institution I wish to understand 
such officers, orders of men, public bodies, settlements of 
property, customs or regulations, concerning matters of gen- 



this last word has passed from the time when it meant a man of gentle — that is, 
not vulgar, not common-blood or extraction, to its present import, which relates 
exclusively to character and breeding. Breeding itself might be mentioned 
here. 



304 0N CIVIL LIBERTY 

eral usage, as do not owe their existence to any express law 
or laws, but having originated in various ways, at a period of 
remote antiquity, are already parts of the national system, at 
the very beginning of our historical view of it, and are recog- 
nized by all actual laws, as being themselves a kind of primary 
condition on which all recorded legislation proceeds. And I 
would confine the term laws to the enactments of a known 
legislative power at a certain known period." 

It will be seen that this writer restricts the meaning of the 
term institution to what has been called grown institutions; 
nor does he do this with philosophical cogency. He enu- 
merates instances ratKer than gives a definition ; and it seems 
arbitrary to bestow the term on grown institutions only. It 
is contrary to universal usage, as well as to the necessity of 
the case. What is an instituted legislature of Wisconsin, an 
incorporated bank, an orphan asylum, or a chartered city 
government, if it be not an institution ? According to Dr. 
Arnold, scarcely a pure institution exists, for in all or nearly 
all institutions positive enactments have become mixed up with 
the unenacted usage, as has been mentioned before. 

Nor is it accurate to call certain "officers or orders of men" 
institutions. What unites the individual officers into an insti- 
tution ? or how can the institution outlast the individual offi- 
cers existing at any given period? How could the house of. 
representatives of congress be an institution, which every one 
calls it, and which assuredly it is, when its members cease to 
be such every two years ? They are but temporary members 
of the perpetual institution. The institution itself is the 
organic law in the Constitution of the United States which 
provides for the organization and periodical renewal of the 
house. The same is true with reference to the state and its 
citizens, living at any given time. 1 Citizens are born and die, 



1 [If Dr. Arnold means orders of men embodying a certain principle, idea, or 
political habit of a nation, he cannot be found fault with. So of officers. A 
tribune and the tribuneship cannot be separated. He conceived of the officer as 
gradually reaching, in old time, certain political functions, which could have 
otherwise no existence.] 



AND SELF-GOVERNMENT. 305 

but the state is a continuum. The jury of the common law 
is an institution now spreading over the territory of at least 
sixty-eight millions of people, but the jurors form only very 
transitory, although continually repeated, representations or 
embodiments of the institution. 1 

It is this very fact, passed over by Dr. Arnold, that consti- 
tutes one of the most important practical features of the 
institution. It spreads the framework of the same system of 
laws over sets of men periodically renewed, prescribing their 
line of action, so that it becomes a consistent continuation of 
that which their predecessors have done, or, to express it in 
other words, it breathes the same leading principles into 
different aggregates of men and different generations, as the 
same principles in varying matter produce and reproduce the 
same seasons. The institution thus insures perpetuity, and 
renders development possible, while without it there is little 
more than subjective impulsiveness, which may be good and 
noble, or ruinous and purely passionate, but always lacks con- 
tinuity, and consequently development and safe assimilating 
growth. A market assembly, convened at stated intervals, 
without institutions, can produce little more than a succession 
of instinctive or impulsive actions — the more impulsive the 
more exciting the subject is on which the uninstitutional mul- 
titude acts. The same applies to larger communities, if they 



1 The term Institute seems to differ from Institution, according to present 
usage, in this, that the first, when it does not mean the initiatory knowledge of 
a wide system of science, (as the institutes of the pandects, of medicine,) is chiefly 
used as a noun proper for an institution of learning or the diffusion of knowl- 
edge, for instance French Institute, Mechanics' Institute. It may be used as a 
generic term for institutions of diffusion of knowledge of a higher character; but 
it is frequently abused in these cases. Schools of some pretence are called in- 
stitutes, with that deplorable extravagance with which common schools are called 
academies, common colleges universities, auction rooms auction marts, a single 
and simple person a party, every chairman a president, and which has so sadly 
invaded our manly language that many superlative words, such as splendid, 
magnificent, giantlike, transcendent, illustrious, and hundreds of others, can 
hardly be any longer used by a sober and vigorous writer, and have become 
worth little more than old coins, once good, but now clipped, punched, and 
sweated by unlawful usage. 



306 



ON CIVIL LIBERTY 



act without institutions, and in this resemble the Indians of 
the pampas, who meet and act on each question by simple 
majority, unguided, unmoulded, unrestrained by permanent 
laws and usages, or without a maturing organism. 

There is nothing so void of lasting good as that history 
which consists of a mere succession of acts through which 
there runs no connecting idea, and which show neither growth 
nor expansion. It sinks to mere anecdotical chronology. All 
that is deeply good or truly great, and not only vast, in the 
sense of Attila's conquest, requires development and progress. 
Impulsiveness without institutions, enthusiasm without an 
organism, may produce a brilliant period indeed, but it is 
generally like the light of a meteor. That period of Portu- 
guese history which is inscribed with the names of Prince 
Henry the Navigator, Camoens, and Albuquerque is radiant 
with brilliant deeds, but how short a day between long and 
dreary nights ! Portugal had no institutions to perpetuate 
her glory, and that splendor was but the accidental effect of 
fortunate circumstances happening to combine at that period. 
Noble national impulses, without institutions, are at best 
happy accidents. 

When it is said that one of the requisites of the institution 
is that it shall contain within itself an organism by which it 
effects its own independent action and continuance, it is obvious 
that this must be taken in a comparative sense, because every 
institution ought to stand in connection with others, and is 
frequently a minor organism of a more comprehensive one; or 
an institution may be actually the creature of the legislature, 
and the legislature itself may be the creature of the constitu- 
tion, which may have emanated from the sovereign will of the 
people. Yet we call a body of laws or usages an institution 
only when we unite the idea of an independent individuality 
with it. It must have its own distinct character, its own pecu- 
liar action, and it must not owe its continuance to the arbi- 
trary mandate of a will foreign to it. Independence does not 
mean disjunction or isolation. 

If this were not so. we would not stand in need of the 



AND SELF-GOVERNMENT. 307 

term institution, and the simple term of Law or Ordinance 
would suffice. 

Neither the Romans nor the Greeks had a separate term for 
institution ; T indeed, the Greeks had not even distinct words for 
the Latin jus and lex, a paucity of language which we share 
with them ; and if the Romans had no word for institution, 
although they had many real institutions, we have many im- 
portant separate systems of law, such as the law of insurance, 
of bailment, the maritime law, without having an appropriate 
term for separate bodies of laws and rules. Nor did the 
Roman probably feel the want of a word for Institution, for 
the same reason that he expressed time by saying : " Two 
hundred years after the founded city!' The thing itself, the 
city, was in his mind. We would say : Two hundred years 
after the foundation of the city. The foundation of the city, 
an abstraction, is in our mind. The Roman said Respublica, 
the Public Thing, and upon this raft of words, strong but 
coarse, his own political progress and civic life forced him to 
put a heavy freight of meaning, until it came to designate the 
vast idea Commonwealth. The Roman was adverse to ab- 
stract terms. 2 Abstracting was a process at which he was no 



1 The Latin Institutum does not exactly correspond to our word institution. 
It means a purpose, object, plan, or design, and, finally, a settled procedure, by 
which it is intended to obtain a certain object ; hence a uniform method of action, 
to be observed when similar cases occur. Institutum is very frequently used in 
conjunction with consuetudo, and often means nothing more than settled usage 
with reference to certain cases. Institutum thus designates one of the elements 
of our Institution, but it does not include the idea of a distinctly limited system 
of laws or usages with a considerable degree of autonomy, nor does it compre- 
hend the idea of our enacted institutions. Institutum retains the idea of usage 
throughout. Still, it is readily seen how the Roman word institutum was natu- 
rally changed and expanded into the modern word Institution. 

2 The Roman shunned abstraction even though he should become illogical. He 
said : In medias res, into the middle things, instead of into the middle of things, 
and we moderns abstract even against all sense. I read but yesterday in large letters 
over a shop this word — Carpetings. Here we have first an unmeaning abstrac- 
tion of a simple and sound word, carpet, and then a plural is made of the more 
abstract term. The Americans, altogether inclined to use pompous and grandilo- 
quent words, are also given to use abstract terms, or those that approach abstrac- 
tion, far more than the English. The sign of the smallest baker's shop will not 



308 ON CIVIL LIBERTY 

good hand. 1 The Greeks, however, may have lacked a proper 
term for the idea institution, although so ready to abstract, 
and possessed of a plastic language, which offered peculiar 
facilities for the formation of abstract terms, while yet the 
people were characterized by an eminently political tempera- 
ment, simply because the Greeks were, comparatively speak- 
ing, not a tribe of a strongly institutional bias. They were 
not prone to establish political institutions, and, with the ex- 
ception of the Dorians, preferred to bring everything under 
the more or less direct will of the mass. But, although the 
Greeks abstracted well, and had a language in which they 
could readily cast any abstraction, it must not be forgotten 
that they rather restricted their terms of abstraction to philo- 
sophical speculation, and in all the other spheres of life and 
action they manifested the true antique spirit, that of positive 
reality. Their style and expressions accorded with this bias. 
They might as easily as ourselves have said the Union or the 
League of the Achseans, but their word for our union was 
simply "the common body," (rd xoivov.') 

Few nations have evinced a greater and more constant tend- 
ency to build up institutions, or to cluster together usages and 
laws relating to cognate subjects into one system and to allow 
it its own vitality, than the Romans in their better period. The 
Greeks, as has been observed, were far less an institutional 
people. There is a degree of adhesiveness and tenacity — a 
willingness to accumulate and to develop precedents, and a 



be John Smith, Baker, but Bakery by John Smith, perhaps even American 
Bakery, or, should it happen to be near the sea, Ocean Bakery. A common 
shop of a green-grocer in the second largest city of the United States, calls itself 
United States Market. The negroes have caught the fever. Not long ago I saw 
a common shanty, erected in a Southern forest to accommodate travellers with 
coffee while their luggage was ferried over a river, adorned with the following 
words on a pine board : Jenny Lind and Sontag Hotel. The railway bridge had 
been carried away, and this cafe was erected for a few days only. 

1 The best grammarians tell us that Latin nouns ending in to, and adjectives 
ending in His, (that is, abstract terms,) must be used with circumspection, and 
not without good authority, since they are comparatively rare in the best writers. 
It speaks volumes concerning the Roman character and mental constitution. 



AND SELF-GOVERNMENT. 309 

political patience to abide by them — necessary for the growth 
of strong and enduring institutions, which little agreed with 
the brilliant, excitable, and therefore changeable Greeks. This 
was at least the case with the Athenians and all their kindred, 
and to them belongs the main part of all that we honor and 
cherish as Grecian. 

The London Times has called the Queen of England an 
institution. This is rhetorically putting the representative for 
the thing — the queen for the crown, which itself is a figura- 
tive expression for the kingly element of the British polity. 
Nevertheless, the meaning of the position that the Queen of 
England is an institution, is correct and British. It originated 
from a conviction that the monarch of Great Britain is not 
such by his own individuality, that he is not appointed by a 
superior power or divine right, but that he enjoys his power by 
the law of the land, which confines and regulates it. It means 
that he is the chief office-bearer, or, it may be, the chief 
emblem-bearer, of a vast institution which forms an integral part 
of the still more comprehensive institution called the British 
government or the state. 1 In the same way are the lord chan- 



1 The reader who desires to become acquainted with the opposite view must 
turn to the Christian Politics, by Rev. Wm. Sewell, Fellow and Subrector of 
Exeter College, London, 1848 ; a book which carries out the views of Filmer to an 
extent which that apologist of absolutism never contemplated. It may be fairly 
considered to occupy the point opposite to that of the most rabid socialist of 
France; and, according to the rule that we ought to dwell on works which carry 
their principles to the fullest length, no matter what those principles may be, it is 
worth the student's while to make himself acquainted with it. If he can get 
through the whole, however, he is more patient than I found it possible to be. 
According to Mr. Sewell, there is but one true government, absolute monarchy, 
demanding absolute obedience; the king makes the state and the view I have 
endeavored to prove in my Ethics, that the state, despite of its comprehensive im- 
portance, still remains a means to obtain certain ends, is attacked as the opinion 
of mere " philosophers." The king, the house of lords, and that of the commons, 
as they ought to be considered, indicate, according to this writer, the relation in 
which possibly the three persons of the one deity stand. Filmer stopped short at 
least with Adam. To counteract the revolting effect which may have just been 
produced, I refer the reader to page 146, where he will find, in a passage of 
great length, that the Greek at Marathon fought only for his country, his hearth, 
and his laws, while the Persian far surpassed him, because he fought for his king 



3io ON CIVIL LIBERTY 

* 

cellor, the justice of the peace, the coroner, institutions ; not 
indeed the individuals who happen to be invested with the 
office, but those systems of laws and usages which they repre- 
sent at the time. 

It is likewise obvious why very old usages or offices of 
large influence are often called institutions. The fact of their 
being old proves a degree of independent action or existence. 
No change of things around them has swept them away ; no 
power has ventured to strike them down. They appear to be 
rooted in society itself, beyond the reach of government ; and 
single offices occasionally are called institutions, by way of 
flattery, because all feel that a real institution is in dignity 
superior to a single law or office, on account of its inherent 
principle of self-government. 

The following, then, are necessary attributes of a complete 
institution, taking the term in its full modern adaptation : 

A system or an organic body of laws or usages forming a 
whole ; 

Of extensive operation, or producing widely-spread effects ; 

Working within a certain defined sphere ; 

Of a high degree of independent permanency ; 

With an individual vitality and an organism, providing for 
its own independent action, and, frequently, for its own de- 
velopment or expansion, or with autonomy ; 

And with its own officers or members, because without these 
it would not be an actual system of laws, but merely a pre- 
script in abeyance. 



(those also who, according to Herodotus, were whipped into battle ?), and that 
" a Christian eye will look with far greater satisfaction and admiration on the 
Persians who threw themselves out of the sinking vessel that by their own death 
they might save their king, than upon Thermopylae or Marathon." Enough ! I 
should not have alluded to such extravagances and crudities, were not the book 
a very learned yet illogical apology for a doctrine which many may have sup- 
posed to be dead, and did it not occupy, in view of its preposterous theory, the 
first place of its class. Nor is it historically uninteresting that such a work has 
been written in the middle of the nineteenth century. So much is certain, that 
were the English government actually founded upon that hyper-absolutism 
which the author considers so Christian, no one would be permitted to assail its 
fundamental principles with that impunity which he now enjoys. 



AND SELF-GOVERNMENT. 311 

The institution is the opposite of subjective conception, 
individual disposition, and mere personal bias. The institu- 
tion implies organic action. In this lies not only its capacity 
of perpetuating principles and of insuring continuous homoge- 
neous and expansive action, but also its great power, its gran- 
deur, its danger, and its mischief, according to its original 
character and its inherent principle. Christ imprinted on his 
church the missionary character, and, from the apostles to the 
servants of the gospel who lately starved near Cape Horn, the 
institution of the missionary ministry has been the pioneer and 
handmaid of extending civilization. But if the institution is 
intrinsically bad, or contains vicious principles, it lends ad- 
ditional and fearful power to the evil element within it, and 
gives a proportionate scope to its calamitous influence. If it 
be established in a sphere in which the subjective ought to 
prevail, it becomes an agent of ruin by making the objective 
prevail more tiian is desirable, or by making the annihilation 
of individuality one of its very objects. The gigantic institu- 
tion of the Society of Jesus, and some of the modern Trades' 
Unions, are impressive and amazing examples. 

Whenever men allow themselves to glide into the belief that 
moral responsibility can be aught else than individual, and 
that responsibility is divisible, provided many perform but one 
act; whenever the esprit du corps prevails over the moral con- 
sciousness of man, which is inseparable from his individuality, 
the institution gives a vigor to that which is unhallowed and 
unattainable by the individual. The institution is, like every 
union of men, subject to the all-pervading, elementary law of 
moral reduplication, as I have called it on previous occasions, 
and which consists in this, that any number of united indi- 
viduals, moved by the same impulse, conviction, or desire, 
whether good or bad — whether scientific, aesthetic, or ethical, 
patriotic or servile, self-sacrificing or self-seeking — will coun- 
tenance and impel each other to far better or far worse acts, 
and will develop in" each other the powers for the specific good 
or evil, in a far greater extent, than would have been possible 
in each separate individual. It is the law which is illustrated 



3T2 ON CIVIL LIBERTY 

by the excellence of whole periods in one particular sphere ; 
by the rapid decadence of nations when once their fall begins; 
by the lofty character of some times, and by the contaminating 
effect of indiscriminate imprisonment; by the power of exam- 
ple ; by the silliness which at times pervades whole classes or 
communities ; by the sublime, calm heroisn on board a sinking 
man-of-war, and at other times by the panic of large masses. 
It is the universal law of mutual countenance and excitement. 

If an institution is founded on a vicious principle, or if a bad 
impulse has seized it for a time, it will not only add to the evil 
force, according to the general law of moral reduplication, but 
lend additional strength by the force of its organization and 
the continuity of its action. Members of an institution will 
do that which, singly, they would never have dared to perpe- 
trate. They will deny the obligation of paying what is due to 
widows and orphans, in cases which would have made them 
look upon the denial as disgraceful, had they acted in their 
own individual capacity. Thousands who have committed acts 
of crying cruelty as members of the Holy Office would not 
have been capable of committing them individually. The in- 
stitution in these cases has the same effect which all united 
and continuous action has. 

On the other hand, institutions have been able, for the 
same reason, to resist iniquitous inroads, or its members have 
been wrought up to a manly devotion, when the individual 
would not, and, often at least, could not, have resisted. In 
almost all cases of an invasion of rights by one of the domestic 
powers, we find that some institution has formed the breakwater 
against the rushing tide of power. There are many instances, 
such as the " Case of the Bishops" under James II., and the 
rejoicing of the better-disposed Frenchmen when the court 
of Paris declared itself, although in vain as it turned out, 
competent to judge of the spoliation which the dictator had 
decreed against the Orleans family, that show how instinct- 
ively men look toward institutions for support and political 
salvation. 

I have purposely restricted my remarks on the resisting 



AND SELF-GOVERNMENT. 313 

force of institutions to cases of invasion by domestic powers. 
When foreign invaders trample upon rights and grind down 
a people, something different and sharper is required to rouse 
them, to electrify them into united resistance. Humanity 
itself must be stung ; an element in man's very nature must 
be offended, so that the most patient cannot endure the 
oppression any longer. We find, therefore, that innumerable 
popular risings against foreign despots, in antiquity and modern 
times, have taken place, when the insolent oppressor, having 
gone all lengths, at last violates a wife or a daughter. Such 
outrage comes home to the most torpid heart, and will not be 
borne by the veriest slave. 

We investigate, here, the nature of the institution in general. 
Like everything possessing power, it may serve for weal or 
woe, as we have seen. Constituted evil is as much worse, as 
constituted good is more efficaciously good than that effected 
by the individual. When we know the essential nature of the 
Institution, we shall be able to judge when, and where, and 
how it may be used beneficially. An institution is an arch : 
but there are arches that support bridges, and cathedrals, 
and hospitals ; and others that support dungeons, banquet- 
rooms of revelry, torture-chambers, or spacious halls in which 
criminal folly enacts a melancholy farce with all the pitiful 
trappings of unworthy submission. 

The greater or less degree in which the institutional spirit 
of different nations is manifested furnishes us with a striking 
characteristic of whole nations. The Romans, the Nether- 
landers, and indeed all the Teutonic tribes, until the dire 
spirit of dis-individualizing centralization seized nearly all the 
governments of the European continent, were institutional na- 
tions. The English and ourselves are still so. The Russians 
and all the Sclavonic nations, the Turks and the Mongolian 
tribes, seem to be remarkably uninstitutional. 

A similar remark naturally applies to different species of 
governments. Some do not only result from a decidedly insti- 
tutional tendency of the people at large, but they also promote 
it, while there is in others an inherent antagonism to the 



314 ON CIVIL LIBERTY 

institution. No absolutism, whether that of one or many, 
brooks institutions. Cunning monarchical absolutism, some- 
times, allows the forms of institutions to exist, in order to use 
them for its own purpose. The reason why all absolutism is 
hostile to living institutions is not only because all absolute 
rulers discountenance opposition, but because there is in 
every despotism an ingrained incompatibility with independent 
action and self-government, in whatsoever narrow circle or 
moderate degree it may strive to maintain itself. This is so 
much the case that often despots of the best intentions for the 
welfare of the people have been the most destructive to the 
remnants of former or to the germs of future institutions, in 
the very proportion in which they have been gifted with bril- 
liant talents, activity, and courage. These served them only 
to press forward more vigorously and more boldly in the 
career of all absolutism, which consists in the absorption of 
individuality and institutional action, or in levelling everything 
which does not comport with a military uniformity, and with 
sweeping annihilation of diversity. 

As institutions may be good or bad, so may they be favor- 
able or unfavorable to liberty. They may indeed give to the 
representative of the institution great freedom, but only" for 
the repression of general freedom. The viziership is an insti- 
tution all over Asia, and has been so from remote periods, but 
it is an institution in the spirit of despotism, and forms an 
active part of the pervading system of Asiatic monarchical 
absolutism. The star chamber was an institution, and gave 
much freedom of action to its members, yet the patriots under 
the Stuarts made it their first business to break down this 
preposterous institution. When in 1660 the Danes made their 
king hereditary and absolute, binding him by the only oath 
that he should never allow his or his successors' power to be 
restricted, the Danish crown became undoubtedly a new insti- 
tution, but assuredly not propitious to liberty. Of all the 
Hellenic tribes the Spartans were probably the most institu- 
tional, but they were communists, and communism is hostile to 
liberty. They dis-individualized the citizens, and, as a matter 



AND SELF-GOVERNMENT. 315 

of course, extinguished in the same degree individual liberty, 
development, and progress. A state in which a citizen could 
be punished because he had added one more to the commonly 
adopted number of lute-strings, cannot be allowed to have 
been favorable to liberty. 

Many of those very attributes of the institution proper, 
which make it so valuable in the service of liberty, constitute 
its inconvenience and danger when the institution is used 
against it. It is a bulwark, and may protect the enemy of 
liberty. It is like the press. Modern liberty or civilization 
cannot dispense with it, yet it may be used as its keenest 
enemy. 



3l6 ON CIVIL LIBERTY 



CHAPTER XXVI. 

THE INSTITUTION, CONTINUED. INSTITUTIONAL LIBERTY. IN- 
STITUTIONAL LOCAL SELF-GOVERNMENT. 

Civilization, so closely connected with what we love in 
modern liberty, as well as progress and security, themselves 
ingredients of civil liberty, stands in need of stability and 
continuity, and these cannot be secured without institutions. 
This is the reason why the historian, when speaking of such 
organizers or refounders of their nations as Charlemagne, 
Alfred, Numa, Pelayo, knows of no higher name to give them 
than that of institutors. 

The force of the institution in imparting stability and giving 
new power to what otherwise must have swiftly passed away, 
has been illustrated in our own times in Mormonism. Every 
observer who has gravely investigated this repulsive fraud will 
agree that as for its pretensions and doctrines it must have 
passed as it came, had it not been for the remarkable charac- 
ter which Joseph Smith possessed as an institutor. 1 Thrice 
blessed is a noble idea, perpetuated in an active institution, as 
charity in a hotel-dieu ; thrice cursed, a wicked idea embodied 
in an institution. 

The title of institutor is coveted even by those who repre- 
sent ideas the very opposite to institutions. 

Louis Napoleon Bonaparte, when he inaugurated his gov- 



1 The great ability of this man seems to be peculiarly exhibited in his mixture 
of truth and arrant falsehood, his uncompromising boldness and insolence, and 
his organizing instituting mind. Two men have met almost simultaneously with 
great success in our own times — Joseph Smith and Louis Napoleon. Of the 
two, the first seems the more clever. What he performed he did against all 
probability of success, without any assistance from tradition or prestige. 



AND SELF-GOVERNMENT. 317 

ernment, dwelt on the " institutions" he had established, 1 with 
pride, or a consciousness that the world prizes the founding 
of good institutions as the greatest work of a statesman and 
a ruler. 

Institutions may not have been viciously conceived, or have 
grown out of a state of violence or crime, and yet they may 
have become injurious in the course of time, as incompatible 
with the pervading spirit of the age, or they may have be- 
come hollow, and in this latter case they are almost sure to 
be injurious. Hollow institutions in the state are much like 
empty boxes in an ill-managed house. They are sure to be 
filled with litter and rubbish, and to become nuisances. But 
great wisdom and caution are necessary to decide whether an 
institution ought to be amputated or not, because it is a notable 
truth in politics that many important institutions and laws are 
chiefly efficient as preventives, not as positive agents. It is 
not sufficient, therefore, that at a glance we do not discover 



1 He meant, of course, the senate, legislative corps, and the council of state. 
Why he calls these new institutions we cannot see, but he evidently wished to 
indicate his own belief, or desired that others should believe, in their perma- 
nency, as well perhaps as in their own independent action. To those, however, 
who consider them as nothing more than the pared and curtailed remnants of 
former institutions, who do not see that they can enjoy any independent action 
of their own, and are aware that their very existence depends upon the mere 
forbearance of the executive; who remember their origin by a mere decree of a 
dictator bound by no superior law, — to those who know with what studied and 
habitual sneer "parliamentary governments" are spoken of by the ruling party 
in France, all these establishments appear in principle no more as real institutions 
than a tent on a stage. The " constitution" of the present empire (Napoleon I. 
always spoke of les constitutions de V empire) is a close copy of the organic laws 
of the first empire. Now, few of my readers, probably, are aware that the very 
name of senatus-consultum, which played so important a part in the first empire, 
and by which the most violent fundamental changes were effected, was literally 
smuggled in by Napoleon I. He did so on occasion of the conspiracy of Ceracchi 
and others, when the council of state resolved that no law should be demanded, 
because that " would lead to discussion." The list of condemned was passed 
by the council of state, upon a report of the police, not even signed, and the 
senate adopted and decreed it, as a senatus-consultum. Memoirs of Miot de 
Melito, (himself a counsellor of state,) vol. i. page 360 and sequ. It hardly 
deserves mention here, that Napoleon adopted the term from the Roman empire, 
which was his political beau-ideal, as he did many other terms and symbols. 



318 ON CIVIL LIBERTY 

any palpable good produced by the institution, to justify us in 
destroying it. Antiquity is prima facie evidence in favor of 
an institution/ and must not rashly be confounded with obso- 
leteness ; but antiquity is certainly no proof against positive 
and grounded arguments. On the other hand, hollow institu- 
tions have frequently the serious inconvenience of deceiving 
and changing the proper venue, as lawyers would express it. 
The form of a representative government, without the spirit, 
true principles, and sincere guarantees of self-government in 
that body, or without being founded upon a candid and real 
representation, is worse than a government without these 
forms, because it eases the executive of the responsibility 
which without that hollow form would visibly rest on it alone. 2 
But here, again, it is necessary to observe that an institution 
may for a time become a mere form, and yet that very form 



1 I am aware that many persons believe nowadays so little in this truth that 
not only does antiquity of itself appear to them as a proof of deficiency, but they 
turn their face from the whole Past, as something to be shunned, thus forgetting 
the continuity of society, progress, and civilization. Mr. Guizot, in his lectures 
on the History of Representative Governments, delivered in Paris, 1820, found 
it necessary to warn his hearers against this horror of the Past. The reader will 
find remarks on the impossibility of " beginning entirely anew," in my Political 
Ethics. 

2 Count Miot relates that when Napoleon, as consul, desired to change the 
entire character of the house of representatives, in order to bring it under the 
exclusive control of the executive, but hesitated to make an organic change by 
mere violence, Talleyrand at last suggested that the other assembly had no 
business assigned to it; why should it not be made to sanction the measure? 
The history of the whole consulate, and of the early period of the empire, is a 
striking and continuous illustration of the assistance which a despot derives from 
mere forms of liberty without the reality of freedom. It would seem that Napo- 
leon I. established certain forms, in conquered countries, for the very purpose of 
assigning the appearance of responsibility to certain bodies of the state, while he 
left the government absolute. It is difficult otherwise to explain the constitution 
which he decreed for Naples, (page 359, vol. ii. of Memoirs of Count Miot de 
Melito,) according to which " the national representation" was to consist of one 
chamber divided into five sections, namely : the clergy, nobility, proprietors, 
savans, and traders; the clergy, nobility, and savans holding their places for life; 
the others removable at pleasure by the government. The Roman senate, when 
it had become the recording body of the imperial decrees, gave much support to 
the emperors, by its appearance of an ancient institution. 



AND SELF-GOVERNMENT. 



319 



may soon be animated again by a proper spirit. Parliament 
under Henry VIII. had become a subservient tool, highly 
noxious because it formally sanctioned many atrocious meas- 
ures of the king. Yet it was that same parliament which 
rose to action and importance within fifty years, and within a 
century and a half became the virtual seat of government and 
supreme power in the state. There is hardly a portion of the 
penal trial which has not at times and for an entire period 
been abused ; yet the existence of this very trial, intended 
to rest on the principle of independence, became in a better 
period the starting-point of a new order of things. 

We must also mention the fact that there are perennial and 
deciduous institutions, or institutions avowedly fit only for a 
preparatory state of civilization. Their office is limited in 
duration, like that of the deciduous teeth, which must be drawn 
if they do not drop of themselves, or if they resist too obsti- 
nately their perennial substitutes. 

We may here close our general remarks on institutions, and, 
now, investigate in what the force of the institution consists, 
when wisely taken into the service of liberty, and inquire into 
the characteristics of self-government in particular. 

By institutional self-government is meant that popular gov- 
ernment which consists in a great organism of institutions 
or a union of harmonizing systems of laws instinct with self- 
government. It is essentially of a co-operative character, and 
thus the opposite to centralism. It is articulated liberty, and 
thus the opposite to an inarticulated government of the ma- 
jority. It is of an inter-guaranteeing, and, consequently, inter- 
limiting character, and in this aspect the negation of absolutism. 
It is of a self-evolving and genetic nature, and thus is contra- 
distinguished from governments founded oil extra-popular 
principles, such as divine right. Finally, institutional self- 
government is, in the opinion of our race, and according to 
our experience, the only practical self-government, or self- 
government carried out in the realities of life, and is thus the 
opposite of a vague or theoretical liberty, which proclaims 
abstractions, but, in reality, cannot disentangle itself from the 



320 ON CIVIL LIBERTY 

despotism of one part over another, however permanent or 
changing the ruling part may be. 

Institutional self-government is the political embodiment of 
self-reliance and mutual acknowledgment of self-rule. It is 
in this view the political realization of equality. 

Institutional self-government is the only self-government 
which makes it possible to unite •S'f^-government and self- 
government. 

According to the Anglican view, institutional self-govern- 
ment consists in the fact that all the elementary parts of the 
government, as well as the highest and most powerful branches, 
consist in real institutions, with all the attributes which have 
been ascribed to an institution in the highest sense of the term. 
It consists, farther, in the unstinted freedom and fair protection 
which are granted to institutions of all sorts, commercial, 
religious, cultural, scientific, charitable, and industrial, to ger- 
minate and to grow — provided they are moral and do not 
invade the equal rights of others. It receives its aliment from 
a pervading spirit of self-reliance and self-respect — the real 
afflatus of liberty. 

It does not only require that the main functions of the 
government — the legislative, the judicial, and the executive — 
be clearly divided, but also that the legislature and the judi- 
ciary be bona fide institutions. The first French constituent 
assembly pronounced the separation of the three powers, and 
was obliged to do so, since it intended to demolish the abso- 
lutism which had grown up under the Bourbons ; but so long 
as there existed an absolute power, no matter of what name, 
that could dictate, liberty was not yet obtained. Indeed, it 
may be said that an efficient division of power cannot exist, 
unless the legislature and the judiciary form real institutions, 
in our sense of the term. 

These institutions, again, consist of many minor institutions, 
as an organism consists of many minor ones. Our congress 
is a real institution, but its component parts, the senate and 
house of representatives, are its constituent institutions, and 
the whole is in close connection with other institutions, for 



AND SELF-GOVERNMENT. 



321 



instance the state legislatures, or depends upon others such as 
the common law. 

Yet the self-government of our country or of England would 
be considered by us little more than oil floating on the surface 
of the water, did it consist only in a congress and state legis- 
latures with us, and in a parliament in England. Self-govern- 
ment, to be of a penetrative character, requires the institutional 
self-government of the county or district; it requires that 
everything which, without general inconvenience, can be left 
to the circle to which it belongs, be thus left to its own man- 
agement; it consists in the presenting grand jury, in the petty 
jury, in the fact that much which is called on the European 
continent the administrative branch be left to the people. It 
requires, in one word, all the local appliances of government 
which are termed local self-government ; * and Niebuhr says 
that British liberty depends at least as much on these as on 
parliament, and in contradistinction to them he calls the 
governments of the continent Staats-Regierungen, (state gov- 
ernments, meaning governments in which all detail is directed 
by the general and supreme power.) 2 



1 T. Toulmin Smith's Local Self-government and Centralization, etc., Lon- 
don, 1 85 1. 

A work which many of my readers will peruse with interest and instruction is 
Ferdinand Bechard's Lois Municipales des Republiques de la Suisse et des 
Etats-Unis, Paris, 1852. Mr. Bechard is also the author of a Traite de 1' Admi- 
nistration Interieure de la France — a work which must be welcome to eveiy in- 
quiring citizen, because it pictures the details of French centralization, the most 
consistently carried-out centralization in existence. 

Mr. Bechard uses repeatedly in his French work the English term Self-govern- 
ment. 

2 A German work, the title of which is : An Account of the Internal Adminis- 
tration of Great Britain, by Baron von Vincke, edited by B. G. Niebuhr, Berlin, 
1815. Niebuhr, who had spent a portion of his early manhood in England, pub- 
lished, and probably modelled in a great measure, this work in order to influence, 
if possible, the Prussian government to reorganize the state after the expulsion of 
the French, and to reclaim that kingdom from the centralization it had adopted 
in many respects from the invaders of Germany. Niebuhr was a follower and 
great admirer of Baron von Stein, who, when minister of Prussia, had given to 
the cities some degree of self-government by his Stadte-Ordnung — causing not 

21 



322 



ON CIVIL LIBERTY 



It must be in view of this local self-government, combined 
with parliamentary freedom, that Sir Edward Coke said of the 
Justice of the Peace : " It is such a form of subordinate 
government for the tranquillity and quiet of the realm as no 
part of the Christian world hath the like, if the same be duly 
executed." 1 

Anglican self-government requires that every institution of 
local self-government shall have the right to pass such by- 
laws as it finds necessary for its own government, without 
obtaining the consent of any superior power, even that of the 
crown or parliament, and that of course such by-laws shall 
stand good in the courts of law, and shall be as binding upon 
every one concerned as any statute or law. I believe that it 
is in the Anglican system of liberty alone that by-laws are 
enacted and have full force without consent of superior power. 
There are in other countries exceptions, but they are rare in- 
deed, and very limited in power, while the by-law is the rule 
in our system. The whole subject of the by-law is character- 
istic and important, and stands out like the comprehensive and 
peculiar doctrine of the Anglican warrant. The character of 
self-government is moreover manifested by the fact that the 
right of making by-laws is not derived from any grant of 
superior power, but has been ever considered in the English 
^polity as inherent in the local community — a natural right of 
freemen. Coke says, with reference to these laws and their 
force : "Of more force is the agreement of the folk and people 



a little umbrage to Napoleon. Niebuhr desired to give increased life to the 
principles contained in the Cities' Charter, when he published the work I have 
mentioned. 

1 Coke's Institutes, part io, ch. xxi., Justices of the Peace. The Earl of Straf- 
ford, who, like his royal master, died so well, after, politically speaking, having 
lived so ill, bade his brother, on the scaffold, to take this among other messages 
to his eldest son :■ "Wish him to content himself to be a servant to his country, 
as a justice of the peace in his county, not aiming at higher preferment." May 
12, 1641. Ku.-hworth, (who was on the scaffold,) vol. viii. p. 760. George 
Washington, after having aided in founding a great commonwealth, and after 
having been twice its chief magistrate, was a justice of the peace in his county, 
in which he was imitated by John Adams, and, perhaps, by other ex-presidents. 



AND SELF-GOVERNMENT. 323 

than the grant of the king;" 1 and in another place he says : 
" The inhabitants of a town, without any custom, may make 
ordinances or by-laws for any such thing which is for the 
general good of the public, 2 unless indeed it be pretended by 
any such by-law to abridge the general liberty of the people, 
their inherent birthright, assured to all by the common law 
of the whole land, and which that common law, in its jealous 
regard for liberty, does not allow to be abrogated or lessened 
even by their own consent — much less, therefore, by the con- 
sent of their delegates in parliament." 3 

It may be added that by-law does not mean, as many suppose, 
additional law, law by the side of another or complementary, 
but it means law of the place or community, law of the by or 
pye — that is, of the collection of dwellers, or of the settlement 
as we, in America, perhaps would naturally express it. 4 



1 8 Reports, p. 125. 2 5 Reports, p. 63. 3 Ibid., p. 64. 

4 See Smith's Local Self-government, p. 230. The quotations from Coke to 
which the three last notes refer are likewise in Smith's work, which I recommend 
to every reader. 

By, in by-law, is the same syllable with which the names of many English 
places end, such as Derby, Whitby, and is etymologically the same with the Ger- 
man Bauen (to build, to settle, to cultivate,) which is of the same root with the 
Gothic Bua and Boo, and especially the frequentative Bygga, azdificare. See 
Adelung, ad verbum Bauen. It is a word which runs through all the Teutonic 
languages, ancient and modern. 

Gradually, indeed, bye-laws came to signify laws for a limited circle, a small 
society, laws which any set of men have the right to pass for themselves within 
and under the superior law, charter, etc., which constitutes them into a society, 
and thus it happened that bye-law was changed into by-law, as we have by-ways, 
roads by the side 1 of others. It cannot be denied that by-law at present is used in 
the sense of law passed by the side, as it were, of another main law. Very few 
persons know of the origin, and the present sense of by-law is doubtless that of 
collateral, expletive, or subordinate law. Such double derivations are not un- 
common in our language. The scholar is probably reminded, by this note, of 
the term God, which we Christians derive from good, and a better, holier deriva- 
tion, as to the sense of the word, we cannot give to it ; yet the historical deriva- 
tion, the verbal etymology, if I might so say, is an entirely different one. See 
Jacob Grimm's German Mythology, ad verbum Gott. The starting-point of 
adoration is, with all tribes, dread, acknowledgment of superior power; then 
follows acknowledgment of wisdom, and last of all acknowledgment of goodness, 
purity, holiness. 



324 ON CIVIL LIBERTY 



CHAPTER XXVII. 

EFFECTS AND USES OF INSTITUTIONAL SELF-GOVERNMENT. 

In order fully to appreciate institutional self-government, 
and not unconsciously to enjoy its blessings, as most of us 
enjoy the breath of life without reflecting on the organ of 
respiration and the atmosphere we inhale, it is necessary to 
present to our minds clearly what effects it produces on the 
individual, on society, and on whole periods, and how it acts 
far beyond the limits of the country where it prevails. 

The advantages of institutional liberty and organized self- 
government, diffused over a whole country or state, and pene- 
trating with its quickening power all the branches of govern- 
ment, may be briefly summed up in the following way : 

Institutional self-government trains the mind and nourishes 
the character for a dependence upon law and a habit of liberty, 
as well as of a law-abiding acknowledgment of authority. It 
educates for freedom. It cultivates civil dignity in all the 
partakers, and teaches to respect the rights of others. It 
has thus a gentlemanly character. It brings home palpable 
liberty to all, and gives a consciousness of freedom, rights, and 
corresponding obligations such as no other system does. It 
is the only self-government which is a real government of self, 
as well as by self, and indeed is the only real self-government, 
of which all other governments assuming the name of self- 
government are but semblances, because they are at most the 
unrestricted rule of accidentally dominating parties, which do 
not even necessarily consist of the majorities. For it is a 
truth that what is called a majority in uninstitutional coun- 
tries, which struggle nevertheless for liberty, is generally a 
minority, and often even a small minority. 



AND SELF-GOVERNMENT. 325 

Institutional self-government incarnates, if the expression 
may pass, the idea of a free country, and makes it palpable, as 
the jury is nobly called the country for the prisoner. It seems 
that as long as institutions exist in full vigor, and no actual 
revolution takes place, that odious and very stale part of a 
successful general who uses the wreaths he has gained abroad, 
as a means of stifling liberty at home, is unknown. Rome had 
her Syllas and Marius, with their long line of successors, only 
from the time when the institutional character of Rome had 
begun to fade. A French writer of ability 1 mentions as a fact 
worthy of note, that the Duke of Wellington never carried his 
ambition higher than that of a distinguished subject, although 
Napoleon expected the contrary ; and General Scott, in his 
account of the offer which was made to him in Mexico, to take 
the reins of that country into his own hands and rule it with 
his army, twice mentions the love of his country's institutions, 
which induced him to decline a ruler's chaplet. 2 



1 Mr. Lemoisne, Wellington from a French Point of View. 

2 General Scott has given an account of this affair in some remarks he made at 
a public dinner at Sandusky, in the year 1852. The generals of most couutries 
would probably charge the victorious general with niaiserie, for declining 
so tempting an offer. We delight in the dutiful and plain citizen who did 
not hesitate, and, as the occurrence possesses historical importance, the entire 
statement of the general is here given. I have it in my power to say, from the 
best information, that the following account is " substantially correct," and as 
authentic as reports of speeches can well be made : 

"My friend," said General Scott, "has adverted to the proposition seen float- 
ing about in the newspapers. I have nowhere seen it correctly stated that an 
offer was made to me to x-emain in that country and govern it. The impression 
which generally prevails, that the proposition emanated from congress, is an 
erroneous one. The overture was made to me privately, by men in and out of 
office, of great influence — five of whom, of enormous wealth, offered to place the 
bonus of one million of dollars (mentioned below) to my credit in any bank* I 
might name, either in New York or London. On taking possession of the city 
of Mexico, our system of government and police was established, which, as the 
inhabitants themselves confessed, gave security — for the first time perfect and 
absolute security — to person and property. About two-fifths of all the branches 
of government, including nearly a majority of the members of congress and the 
executive, were quite desirous of having that country annexed to ours. They 
knew that, upon the ratification of the treaty of peace, nineteen out of twenty of 



326 ON CIVIL LIBERTY 

Institutional self-government is of great importance regard- 
ing the obedience of the citizen. 

Obedience is one of the elements of all society, and conse- 
quently of the state. Without it political society cannot hold 
together. This is plain to every one. Yet there exists this 
great distinction, that there may be obedience demanded on 
the sole ground of authority ; such is the obedience expected 
by the parent. The authority of the parent comes from a 
source not within the circle of the obeyers. And there may 



the persons belonging to the American army would stand disbanded, and would 
be absolutely free from all obligations to remain in the army another moment. It 
was entirely true of all the new regiments called regulars, of all the volunteers, and 
eight out of ten of the rank and file of the old regiments. Thirty-three and a third 
per cent, were to be added to the pay of the American officers and men retained 
as the nucleus of the Mexican army. When the war was over, the government 
ovei-whelmed me with reinforcements, after there was no possibility of fighting 
another battle. When the war commenced, we had but one-fourth of the force 
which we needed. The Mexicans knew that the men in my army would be 
entitled to their discharge. They supposed, if they could obtain my services, I 
would retain these twelve or fifteen thousand men, and that I could easily obtain 
one hundred thousand men from home. The hope was, that it would immediately 
cause annexation. They offered me one million of dollars as a bonus, with a 
salary of 5250,000 per annum, and five responsible individuals to become security. 
They expected that annexation would be brought about in a few years, or, if not, 
that I could organize the finances and straighten the complex affairs of that gov- 
ernment. It was understood that nearly a majority of congress was in favor of 
annexation, and that it was only necessary to publish a pronunciamento to secure 
the object. We possessed all the fortresses, all the arms of the country, their 
cannon foundries and powder manufactories, and had possession of their ports 
of entry, and might easily have held them in our possession if this arrangement 
had gone into effect. A published pronunciamento would have brought congress 
right over to us, and, with these fifteen thousand Americans holding the fortresses 
of the country, all Mexico could not have disturbed us. We might have been 
there to this day, if it had been necessary. I loved my distant home. I was not 
in favor of the annexation of Mexico to my own country. Mexico has about 
eight millions of inhabitants, and out of these eight millions there are not more 
than one million who are of pure European blood. The Indians and mixed 
races constitute about seven millions. They are exceedingly inferior to our own. 
As a lover of my country, I was opposed to mixing up that race with our own. 
This was the first objection, on my part, to this proposition. May I plead some 
little love of home, which gave me the preference for the soil of my own country 
and its institutions ? I came back to die under those institutions, and here I am. 
I believe I have no more to add in reply." 



AND SELF-GOVERNMENT. 327 

be obedience which has its very source within the circle of the 
obeyers. Such is the source of obedience due to authority in 
that society the component members of which live in jural 
relations — in one word, in the state. The freeman obeys, not 
because the government exists before the people and makes 
them, but because man is a being destined to live in a political 
state — because he must have laws and a government. It is 
his privilege, and distinguishes him from the brute creation. 
Yet, the government existing as a consequence of the jural 
nature of society and of man, it is unworthy of a freeman to 
obey any individual as individual, to follow his commands 
merely because issued by him, while the citizen of a free 
country acknowledges it as a prerogative to obey laws. 

The obedience of a loyal free citizen is an act of self-direct- 
ing compliance with a rule of action; and it becomes a triumph 
of reason and freedom when self-directing obedience is thus 
paid to laws which the obeyer considers erroneous, yet knows 
to be the laws of the land, rules of action legitimately pre- 
scribed by a body of which he forms a constituent part. This 
noble attribute of man is never politically developed except 
by institutions. To obey institutions of self-government has 
nothing galling in it on the ground of submission. We do not 
obey a person whom as individual we know to be no more than 
ourselves, but we obey the institution of which we know our- 
selves to be as integral a part as the superior, clothed with 
authority. The religious duty of obeying for conscience' sake 
is not excluded from this obedience. On the contrary, it forms 
an important element. The term "law-abiding people" could 
never have become so favorite an expression with us, and would 
not be inscribed even on the banners of some who defy the law, 
were we not an institutional people under the authority of 
institutional self-government. 

Rulers over thirty millions of people, like our presidents, 
could not be easily changed, without shock or convulsion, 
were not the thirty millions trained by institutional self-gov- 
ernment, were not the ousted minority conscious that, in the 
spontaneous act of submitting, they obey an institution of 



328 ON CIVIL LIBERTY 

which they form as important a portion as the ruling party, 
and did not their own obedience foreshadow the obedience 
which the others must yield when their turn comes. The 
"principle of authority" has become for the time being as 
popular, at least as often-repeated, a phrase, in France, as 
" abiding by the law" is with us. Pamphlets are written on it, 
the journals descant on it. If the object of these writings is to 
prove that there must be authority where there is society, it 
would prove that the writers must consider the opinion of some 
communists, that all government is to be done away with, far 
more serious and disseminated than people at a distance can 
believe, to whom such absurdity appears as a mere paper and 
opposition fanaticism. If, however, all those discourses are 
intended to establish the principle of authority in politics as 
an independent principle, such as we find it in the church, be- 
cause its institutor gave divine commandments, it would only 
show that the ruling party plainly desires absolutism. 1 



1 There is no doubt in my mind that the institutional government is the real 
school of civil obedience. Whether the following remarkable passage, which I 
found in Baron Miiffling's Memoirs of the Campaign of 1813 and 1814, edited by 
Col. Philip Yorke, London, 1853, must be in part explained by the general self- 
government of England, and by the fact that eveiy English gentleman is accus- 
tomed to political self-government and consequently to obedience, I shall not 
decide, but I strongly incline to believe that we must do so. General Muffling 
was the Prussian officer in the staff of the Duke of Wellington who served as an 
official link between the two armies. He was, therefore, in constant personal 
intercourse with the English commander, and had the very best opportunity of 
observing that which he reports. 

" I observed," says General Muffling, " that the duke exercised far greater 
power in the army he commanded than Prince Bliicher in the one committed to 
his care. The rules of the English service permitted the duke's suspending 
any officer and sending him back to England. The duke had used this power 
during the war in Spain, when disobedience showed itself among the higher 
officers. Sir Robert Wilson was an instance of this. 

" Amongst all the generals, from the leaders of corps to the commanders of 
brigades, not one was to be found in the active army who had been known as 
refractory. 

" It was not the custom in this army to criticise or control the commander-in- 
chief. Discipline was strictly enforced ; every one knew his rights and his 
duties. The duke, in matters of service, was very short and decided. He 



AND SELF-GOVERNMENT. 329 

Institutional self-government distinguishes itself above all 
others for tenacity and a formative, assimilative, and transmis- 
sible character. 

Its tenacity is shown by the surviving of many institutions 
even in the most violent changes, although little of a self- 
governing character may be left in them. In no period is 
this truth more strikingly illustrated than in the conquest of 
the Roman empire by the Northern races. The Gothic sword 
took lands and scaled towns, but it could not scale institutions, 
and Theodoric assimilated his Germanic hosts to the remnants 
of Roman institutions, rather than the Italians to the con- 
querors. It has been so wherever the conqueror met with 
institutions and did not in turn oppose institutions of his own, 
as, in a great measure, the Visigoths did in Spain. The mili- 
tary, despotism which swept over the whole continent of Europe 
left England unscathed; even in spite of Cromwell's military 
and organized absolutism, the institutions survived Cromwell's 
vigor and the prostitution of England under Charles II. 

Lord Macaulay says that it was probably better that the 
English allowed Charles II. to return without insisting upon 
distinct and written guarantees of their liberties. This may 
be a disputable point, for we see that the English were after 
all obliged to resort to them in the Declaration of Rights and 
Settlement ; but it will hardly be disputed that the reigns of 
Charles II. and James II. would have been fatal to England 
had she not been eminently institutional in her character. 

The tenacious life of institutional liberty is proved perhaps 
best in times of political mediocrity and material well-being. 
Gloomy, or ardent, and bold times may try men's souls, but 
periods of material prosperity and public depression try a 
country's institutions. They are the most difficult times, and 
liberty is lost at least as often by stranding on pleasant shores 
as by wrecking on boiling breakers. 

The formative character of institutional self-government is 



allowed questions, hut dismissed all such as were unnecessary. His detractors 
have accused him of being inclined to encroach on the functions of others — a 
charge which is at variance with my experience." 



330 ON CIVIL LIBERTY 

shown in such cases as the formation of the Oregon govern- 
ment, mentioned before. So does the extensive British empire 
in the East show the formative and vital character of self- 
government No absolute government could have established 
or held such an empire at such a distance, and yet an absolute 
ruler would consider it indicative of feebleness and not of 
strength in a government, that a board of shareholders could 
recall a governor-general, and that a man like Sir Robert Peel, 
as premier, acquiesced in it. 

Even the Liberians may be mentioned here. People who, 
while with us, belonged to a degraded class, many of whom 
were actual slaves, and the rest socially unfree, nevertheless 
have carried with them an amount of institutionalism which 
had percolated even down to them; and a government has been 
established by them which enjoys internal peace, and seems to 
grow in strength, and character every day, at the same time 
that hundreds of attempts in Europe have sadly miscarried. 
And, again, people of the same race, but having originally 
lived under a government without the element of institutional 
self-rule — the inhabitants of St. Domingo — resemble their 
former masters in the rapid succession of different govern- 
ments destitute of self-government and peace. 

The words of Mr. Everett are doubtless true, that " the 
French, though excelling all other nations of the world in the 
art of communicating for temporary purposes with savage 
tribes, seem, still more than the Spaniards, to be destitute of 
the august skilly required to found new states. I do not know 
that there is such a thing in the world as a colony of France 
growing up into a prosperous commonwealth. A half a 
million of French peasants in Lower Canada, tenaciously 
adhering: to the manners and customs which their fathers 
brought from Normandy two centuries ago, and a third part 
of that number of planters of French descent in Louisiana, are 
all that is left to bear living witness to the amazing fact that 
not a century ago France was the mistress of the better half 
of North America." J Are they succeeding in establishing a 

1 Mr. Everett's Address before the New York Historical Society, 1853. 



AND SELF-GOVERNMENT. 



331 



vigorous colony in Algeria ? It seems not ; and the question 
presents itself, what is the reason of this inability of so in- 
telligent a nation as the French to establish flourishing colo- 
nies ? I believe that the chief reason is this : The French are 
thoroughly wedded to centralism, and eminently uninstitutional 
in their character. They want government to do everything 
for them. They are peculiarly destitute of self-reliance in all 
public and communal matters. They do not know self-gov- 
ernment ; they cannot impart it. Every Frenchman's mental 
home is Paris, even while residing in France ; as to a colonial 
life, he always considers it a mere exile. 1 

The assimilative power arid transmissible character of the 
institution are closely connected with its tenacity and forma- 
tive character. Few things in all history seem to me more 
striking, and, if analyzed, more instructive, than the fact that 
Great Britain, though monarchical in name, and aristocratic 
in many points, plants freedom wherever she sends colonies, 
and becomes thus the great mother of republics; while France, 
with all her democratic tendencies, her worship of equality 
and repeated proclamations of a republic, has never ap- 
proached nearer to the republic than setting aside a ruling 
dynasty ; her colonies are, politically speaking, barren depend- 
encies. They do not bloom into empires. The colonies of 
Spain also teach a grave lesson on this subject. 2 



1 There are doubtless many causes operating together, and one of these may- 
be that the French are not inherently fond of »agriculture, as the Germanic races 
are. The English are eminently so. 

From the Canadian census published in 1853, the following difference between 
the French and the Anglo-Saxon colonists appeared : The inhabitants of Lower 
Canada are chiefly of French origin, and are not much fewer in number than the 
Upper Canadians; the latter being 952,004, and the former 890,261, according 
to the last census. But although so close to them in point of numbers, and also 
in the quantity of land they have under cultivation, the -inhabitants of Lower 
Canada raise a much smaller quantity of agricultural produce than the Upper 
Canadians obtain from the soil. With the exception of maple sugar and flax, in 
which they far surpass the inhabitants of the Upper Province, they fall greatly 
below them in nearly all the more valuable products. 

2 The reader has a right to ask here, why then did not the Netherlands, so 



332 



ON CIVIL LIBERTY 



The power by which institutional self-government assimilates 
various and originally discordant elements is forcibly shown 
in the United States, where every year several hundred thou- 
sand emigrants arrive from countries under different govern- 
ments. The institutions of our country soon absorb and 
assimilate them as integral parts of our polity. In no other 
political system of which liberty forms any part, could this 
be done. Imagine an influx of foreigners in a country like 
France when she called herself republican, and the danger of 
so large a body of foreigners would soon be perceived. It 
would be an evil day indeed for the United States and for the 
emigrants, if our institutions were to be broken up and popu- 
lar absolutism erected on the ruins of our institutional liberty. 
We, of all nations on earth, are most interested in the vigorous 
life and healthful development of institutional self-government. 
No nation has so much reason to shun mere inarticulated 
equality and barren centralization as ourselves. 

On the other hand, it may be observed that the Turks to 



institutional in their character, establish prosperous self-governments in foreign 
parts, as England did ? I believe the answer which must be given is this : 

The Netherlands lacked at home a protecting national government proper — 
one that could furnish them with a type of a comprehensive yet popular general 
government. The Netherlandish colonies always remained mere dependencies 
upon the executive. The Netherlanders did not plant colonial legislatures. 

The Netherlands, moreover, had lapsed into a state of sejunction. The idea 
of their petty sovereignty was carried to the most ruinous extreme. The Greeks 
colonized, indeed, by dotting as it were foreign parts. The shores of the Medi- 
terranean were sprinkled with Greek and Phoenician colonies corresponding to 
the ancient city-states — from which they had branched off. But a Netherlandish 
town could not thus have established a little colony in Java or the West Indies. 

Lastly, I believe the Netherlanders did not become the disseminators of self- 
government, although institutional in their character, because they had no living 
common law to take with them, as the talent of the mother-country. They had 
learned the civil law — at least sufficient of it to stifle farther development of 
common law. We know already that the Roman Law, however excellent some 
of its principles are, is void of the element of self-government, and, because 
superinduced, antagonistic to self-development of law. 

Nevertheless, it is a question of interest to Americans, whether, and how far, 
the settlers of New England were influenced by their sojourn in the republican 
Netherlands. I throw out the question. It deserves a thorough yet very plain 
and unbiased inquiry. 



AND SELF-GOVERNMENT. 333 

this day are little more than they were on the day of their 
conquest — isolated rulers, unassimilated and unassimilating, 
having for centuries been in possession of the finest country 
in Europe, whence in the fifteenth century our civilization re- 
ceived a new impulse. So unidentified are the Turks with the 
country or its population that the idea of their expulsion from 
Europe has in it nothing strange, or difficult to imagine. The 
reasons cannot lie in their race, for they are no longer Mon- 
golians ; they cannot lie in their religion, for Mohammedans 
have flourished. They have no political institutions, carrying 
life and action within them, nor did they find institutions, 
which might have absorbed the conquerors. The Byzantine 
empire had become a mere court government long before the 
Turks conquered it, and the worst court government that ever 
existed in Europe. 1 

The stability obtained by an institutional government is 
closely connected with the tenacity which has been mentioned; 
but it is necessary to observe that an institutional self-govern- 
ment seems to be the only one which unites the two necessary 
elements of continuity and progression, or applicability to 
changing conditions. Asia, with its retrospective and tradi- 
tional character, and without political mutations proper, offers 
the sight of stagnation. France, with her ardently prospective 
and intellectual character, but without political institutions 
proper, lacks continuity and political development. There is 
a succession of violent changes, which made Napoleon I. ex- 
claim, observing the fact but not perceiving the cause, " Poor 
nations ! in spite of all your enlightening men, 2 of all your 



1 The same is said of the Manchous in China. The ruling soldier tribe has 
not assimilated itself with the Chinese, and the expulsion of the dynasty seems 
no incredible occurrence, even though the present rebellion should not be suc- 
cessful. In the case of China, the conquered race had many firmly-established 
laws and civil institutions, to which the conquering race continued strangers, at 
least so far as to remain chiefly soldiers. No reliance is weaker than that which 
rests mainly on the army, even if the army is in fighting-order, which the Chinese 
is not. 

2 The word reported to have been used by Napoleon is hanieres, which may 
mean men who enlighten, or the light which is given. The passage is found in 



334 



ON CIVIL LIBERTY 



wisdom, you remain subject to the caprices of fashion like 
individuals." Now, it is pre-eminently institutional self-gov- 
ernment which prevents the rule of political fashion, because, 
on the one hand, it furnishes a proper organism by which 
public opinion is elaborated, and may be distinguished from 
mere transitory general opinion, 1 from acclamation or panic ; 
and, on the other hand, it seems to be the only government 
strong enough to resist momentary excitement and a sweeping 
turn of the popular mind. Absolute popular governments are 
liable to be influenced by every change of general passion or 
desire, and monarchical concentrated absolutism is as much 
exposed to the mutations of passions or theories. The differ- 
ence is only that single men — ministers or rulers — may effect 
the sudden changes according to the views which may happen 
to prevail. The English government, with all its essential 
changes and reforms, and the lead it has taken in many of the 
latter, during this century, has proved .itself stable and con- 
tinuous in the same degree in which it is popular and institu- 
tional, compared to the chief governments of the European 
continent. The history of a people, longing for liberty but 
destitute of institutional self-government, will always present 
a succession of alternating tonic and clonic spasms. Many 
of the Italian cities in the middle ages furnish us with addi- 
tional and impressive examples. 

Liberty is a thing that grows, and institutions are its very 
garden beds. There is no liberty which as a national blessing 
has leaped into existence in full armor like Minerva from the 



the Memorial de Sainte-Helene, by Las Cases. Napoleon was speaking of the 
clergy, and the whole passage runs thus : 

" Je ne fais rien pour le clerge qu'il ne me donne de suite sujet de m'en re- 
pentir, disait Napoleon ; peut-etre qu'apres moi viendront d'autres principes. 
Peut-etre verra-t-on en France une conscription de pretres et de religieuses, 
comme on y voyait de raon temps une conscription militaire. Peut-etre mes 
casernes deviendront-elles des couvents et des seminaires. Ainsi va le monde! 
Pauvres nations ! en depit de toutes vos lumieres, de toute votre sagesse, vous 
demeurez soumises aux caprices de la mode comme de simples individus." 

1 Public Opinion and General Opinion have been discussed in the first volume 
of Political Ethics. 



AND SELF-GOVERNMENT. 335 

head of Jove. Liberty is crescive in its nature. It takes 
time, and is difficult, like all noble things. Things noble are 
hard, 1 was the favorite saying of Socrates, and liberty is the 
noblest of all things. It must be defended, developed, con- 
quered, and bled for. It can never be added, like a mere 
capital on a column; it must pervade the whole body. If the 
Emperor of China were to promulgate one of the charters of 
our states for his empire, it would be like hanging a gold 
collar around the neck of a camel. 

Liberty must grow up with the whole system ; therefore we 
must begin at once, where it does not exist, knowing that it 
will take time for perfection, and not indeed discard it, be- 
cause it has not yet been commenced. That would be like 
giving up the preparation of a meal, because it has not been 
commenced in time. Let institutions grow, and sow them at 
once. 

We see, then, how unphilosophical were the words of the 
present Emperor of the French to the assembled bodies of 
state in February, 1853, when he said: "Liberty has never 
aided in founding a durable edifice ; liberty crowns it when it 
has been consolidated by time." 

History denies it ; political philosophy and common sense 
alike contradict it. Liberty may be planted where despotism 
has reigned, but it can be done only by much undoing, and 
breaking down ; by a great deal of rough ploughing. We 
cannot prepare a people for liberty by centralized despotism, 
any more than we can prepare for light by destroying the 
means of vision. Nowhere can liberty develop itself out of 
despotism. It can only chronologically follow the rule of ab- 
solutism ; and if it does so, it must begin with eliminating its 
antagonistic government. Every return to concentrated des- 
potism, therefore, creates an additional necessity of revolution, 
and throws an increased difficulty in the way of obtaining 
freedom. 



XaXerra rd. ko.2,u. May we not add koi. tcaM to. #a/le7ra ? 



336 ON CIVIL LIBERTY 



CHAPTER XXVIII. 

DANGERS AND INCONVENIENCES OF INSTITUTIONAL SELF- 
GOVERNMENT. 

Institutional self-government has its dangers and incon- 
veniences, as all human things have, and if its success requires 
the three elements necessary for all success of human action 
— common sense, virtue and wisdom, it must be added that, 
while Self-Government accepts the ancient saying : Divide 
and rule, in a sense different from that in which it was origi- 
nally meant, the opposite is equally true : Unite and rule, as 
history and our own times abundantly prove. 

It has been stated that nothing is more common than gov- 
ernments which, fearing the united action of the nation, yet, 
being obliged to yield in some manner to the demand for 
liberty, try to evade it and to deceive the people by granting 
provincial representations or estates. In these cases division 
is indeed resorted to for the greater chance of ruling the 
people, because when separate they are weak, and one portion 
may be played off against the other, as the marines and sailors 
neutralize one another on board the men-of-war. In no period 
probably has this conduct of continental governments more 
strikingly shown itself than in that which began with the 
downfall of Napoleon and ended with the year 1848. But it 
must not be forgotten that by institutional self-government a 
polity has been designated that comprehends institutions of 
self-government for all the regions of the political actions of a 
society, and it includes the general and national self-govern- 
ment as well as the minute local self-government. 

The self-government of a society, be this a township or a 
nation, must always be adequate to its highest executive ; and 



AND SELF-GOVERNMENT. 337 

when any branch is national, all the three branches must be 
national. The very nature of civil liberty, as we have found it, 
demands this. They must work abreast, like the horses of 
the Grecian chariot, public opinion being the charioteer. Had 
England, as she has now, a general executive, but not, as now, 
a general parliament, the self-government of the shires and 
towns, of courts and companies, would soon be extinguished. 
Had we a president of the United States and no national legis- 
lature, it is evident that either the president would be useless, 
and there would be no united country, or if the executive had 
power, there would be an end to the state self-governments, 
even if the president were to remain elective. Liberty re- 
quires union of the whole, whatever this whole, or Koinon, as 
the Greeks styled it, may be, as has been already mentioned. 
Wisdom, practice, political forbearance, and manly independ- 
ence can alone decide the proper degree of union, and the 
necessary balance. 

One of the dangers of a strongly institutional self-govern- 
ment is that the tendency of localizing may prevail over the 
equally necessary principle of union, and that thus a disinte- 
grating sej unction may take place, which history shows as a 
warning example in the United States of the Netherlands. I 
do not allude to their Pact of Utrecht, which furnished an 
inadequate government for the confederacy, and upon which 
the framers of our federal constitution so signally improved, 
after having tried a copy of it in the articles of the confedera- 
tion. I refer to the Netherlandish principle, according to 
which every limited circle and even most towns did not only 
enjoy self-government, but were sovereign, and to each of 
which the stadtholder was obliged to take a separate oath of 
fidelity. The Netherlands presented the very opposite ex- 
treme of French centralism. The consequence has been that 
the real Netherlandish greatness lasted but a century, and in 
this respect may almost be compared to the brevity of Portu- 
guese grandeur, though it resulted from the opposite cause. 1 

1 We may also mention as a want of union, the fact that unanimity of all the 
states was required for all the most important measures, such as taxation and war 

22 



338 ON CIVIL LIBERTY 

The former constitution of Hungary, according to which 
each comitate had the right to vote whether it would accept 
or not the law passed by the diet, 1 is an instance of the ruinous 
effect of purely partial self-government. The nation, as na- 
tion, must participate in it ; and Hungary lost her liberty, as 
Spain and all countries have done which have disregarded 
this part of self-government. 

Another danger is that with reference to the domestic gov- 
ernment, the local self-government may impede measures of a 
general character. Instances and periods of long duration 
occur, which serve as serious and sometimes as alarming com- 
mentaries on the universal adage, that what is everybody's 
business is nobody's business. The roads, considered by the 
Romans so important that the road-law found a place on the 
twelve tables, and sanitary regulations, frequently suffer in this 
way. The governments of some of our largest cities furnish 
us with partial yet striking illustrations. 

It might be added that one of the dangers of self-govern- 
ment lies in this, that the importance of the institutional 
character may be forgotten, that the limitations may be con- 
sidered as fetters, and that thus the people may come to forget 
that part of self-government which relates to the being gov- 
erned, and only remember that part which consists in their 
governing. If this takes place, popular absolutism begins, and 
one part rules supreme over the other. 

We reply to these objections that it is a characteristic of 
absolutism that it believes men can be ruled by formulas and 
systems alone. The scholar of liberty knows that important 
as systems and institutions, principles and bills of rights are, 
they still demand rational and moral beings, for which they 
are intended, like the revelation itself, which is for conscious 
man alone. Everything in this world has its dangers. In 
this lies the fearful responsibility of demagogues. " Take 
power, bear down limitation," is their call on the people, as it 



1 The author of the famous Oceana proposed a similar measure for England, 
as St. Just, " the most advanced" follower of Robespierre, did for France. 



AND SELF-GOVERNMENT. 339 

was the call of the courtiers on Louis XIV. Their advice of 
political intemperance resembles that which is given on the 
tomb of Sardanapalus, regarding bodily intemperance: "Eat, 
drink, and lust ; the rest is nothing." z 

We must the more energetically cling to our institutional 
government, and the more attentively avoid extremes. At 
the same time, the question is fair whether other systems 
avoid the danger or do not substitute greater evils for it ; and, 
lastly, we must in this, as in all other cases, while honestly 
endeavoring to remedy or prevent evil, have an eye to the 
whole and see which yields the fairest results. Nothing, 
moreover, is more dangerous than to take single brilliant facts 
as representatives of systems. They prove general soundness 
as little as brilliant deeds necessarily prove general morality. 

It is these dangers that give so great a value to constitu- 
tions, if conceived in the spirit of liberty. The office of a 
good constitution, besides that of pronouncing and guarantee- 
ing the rights of the citizen, is that, as a fundamental law of 
the state, it so defines and limits the chief powers, that, each 
moving in its own orb, without jostling the others, it prevents 
jarring and grants harmonious protection to all the minor 
powers of the state. 2 

A constitution, whether it be an accumulative one, as that 
of Great Britain, or an enacted one, as ours, is always of great 
importance, as indeed all law is important wherever there is 
human action ; but, from what has been stated, it will be 
readily perceived that constitutions are efficient toward the 



1 " The epitaph inscribed upon the tomb of Sardanapalus, ' Sardanapalus, the 
son of Anacyndaraxos, built Anchiola and Tarsos in one day : eat, drink, and lust ; 
the rest is nothing,' has been quoted for ages, and its antiquity is generally ad- 
mitted." — Layard's Nineveh, vol. ii. p. 478. 

2 Constitutions, therefore, must not be changed too easily or too frequently; 
for, if a constitution be almost periodically changed, by the sovereign power of 
the people, it is obvious that the absolute power of the people in a degree enters 
as an element of government. Absolutism, therefore, is approached. Parlia- 
ment is theoretically omnipotent in a political sense; the people, with us, are 
politically omnipotent ; and if the people enact new constitutions every five or 
ten years, the convention sits, in reality, as an omnipotent parliament. 



340 



ON CIVIL LIBERTY 



obtaining of their main ends, the liberty of the citizen, only in 
the same degree as they themselves consist of an aggregate of 
institutions ; as, for instance, that of the United States, which 
consists of a distinct number of clearly devised and limited 
as well as life-possessing institutions, or as that of England, 
which consists of the aggregate of institutions considered by 
him who uses the term British Constitution, of fundamental 
and vital importance. It will, moreover, have appeared that 
these constitutions have a real being only if founded upon 
numerous wide-spread institutions, and feeding, as it were, 
upon a general institutional spirit. Without this, they will be 
little more than parchment ; and, important as our constitu- 
tions are, it has already been seen that the institution of the 
Common Law, on which all of them are based, is still more 
important. It cannot be denied that occasional jarring takes 
p'ace in a strongly institutional government. It is, as we 
have called it, of a co-operative character, and all co-opera- 
tion may lead to conflict. There is, however, occasional jar- 
ring of interests or powers, wherever there are general rules 
of action. 

This jarring of laws, and especially of institutions, so much 
dreaded by the absolutists, whose beau-ideal is uncompromis- 
ing and unrelieved uniformity, is very frequently the means 
of development, and of that average justice which constitutes 
a feature of all civil liberty. If there be anything instructive 
in the history of free nations, and of high interest to the 
student of civil liberty, it is these very conflicts, and the 
combined results to which they have led. It must also be 
remembered that liberty is life, and life is often strife, in the 
social region as in that of nature. If, at times, institutions 
lead to real struggles, we have to decide between all the good 
of institutional liberty with this occasional inconvenience, and 
absolutism with all its evils and this occasional avoidance of 
conflicting interests ; for even under an absolutism it is but 
occasional. Wha" domestic conflicts have there not been in 
the history of Russia and Turkey ! 

The institution unquestionably results in part from, and in 



AND SELF-GOVERNMENT. 34 1 

turn promotes, respect for that which has been established or 
grown. This leads occasionally to a love of effete institutions, 
even to fanaticism ; but fanaticism, which consists in carrying 
a truth or principle to undue length, irrespective of other 
truths and principles, equally important, besets man in all 
spheres. Has absolutism not its own bigotry and fanaticism ? x 
When an institution has become effete ; when nothing but 
the form is left ; when its life is fled — in one word, when the 
hull of an institution remains, and it has ceased to be a real 
institution, it is inconvenient, dangerous, or it may become 
seriously injurious. Nothing, as I stated before, is so con- 
venient for despotism, as the remaining forms of an obsolete 



1 I have expressed my view on this subject in an address to a graduating class. 
I copy the passage here, because I believe the truth it contains important : 

" Remember how often I have endeavored to impress upon your minds the 
truth, that there is no great and working idea in history, no impulse which passes 
on through whole masses, like a heaving wave over the sea, no yearning and 
endeavor which gives a marking character to a period, and no new institution or 
new truth, which becomes the substantial addition that a certain age adds to the 
stock of progressive civilization — that has not its own caricature and distorted 
reflection along with it. No Luther rises with heroic purpose, without being 
caricatured in a Carlstadt. The miracle wrought by Him to whom it was no 
miracle, is mimicked in toyish marvels for easy minds. The communists are to 
the dignity of labor what the hideous anabaptists were to the Reformation, or 
tyrannical hypocrites in England to the idea of British liberty in a Pym or Hamp- 
den. There was a truth of elementary importance conveyed in the saying of 
former ages, however irreverent it may appear to our taste, that Satan is the 
mimicking and grimacing clown of the Lord. I will go farther, and assert, that 
no great truth can be said to have fairly begun to work itself into practice, and 
to produce, like a vernal breath, a new growth of things, if we do not observe 
somewhere this historic caricature. Has Christianity itself fared better? Was 
the first idea, which through a series of errors led to the anchorites and pillar 
saints, not a true and holy one? Does not all fanaticism consist in recklessly 
carrying a true idea to an extreme, irrespective of other equally true ones, which 
ought to be developed conjointly, and under the salutary influence of mutual 
modification? There is truth in the first idea whence the communist starts, as 
much so as there is truth in the idea which serves as a starting-post for the advo- 
cate of the ungodly theory of divine right ; but both carry out their fundamental 
principle to madness, and, ultimately, often run a muck in sanguinary ferocity. 
Do not allow yourselves, then, to be misled by these distortions, or to be driven 
into hopeless timidity, which would end in utter irresolution, and a misconcep- 
tion of the firmest truths." 



342 



ON CIVIL LIBERTY 



freedom, or forms of freedom purposely invented to deceive. 
A nobility stripped of all independence, and being nothing 
but a set of court retainers, the Roman senate under the 
emperors, the court of peers under Henry VIII., representative 
houses without power or free action, courts-martial dictated 
to by a despot, elections without freedom, are fearful engines 
of iniquity. They bear the responsibility, without free agency. 
They are in practice what syllogism is without truthfulness. 
But this is no reproach to the institution in general, nor any 
reason why we ought not to rely upon it. Many an old 
church has served as a den for robbers. Shall we build no 
churches ? If the institution is effete, let it be destroyed, but 
do it, as Montesquieu says of laws in general, " with a trem- 
bling hand," lest you destroy what only appeared to your one- 
sided view as effete. 

Still more vigorously must the battering-ram be directed 
against institutions which from the beginning -have been bad, 
or which plainly are hostile to a new state of things. There 
are institutions as inconsistent wkh the true aim of society, 
though few are as monstrous, as the regularly incorporated 
prostitutes of ancient Geneva were. They must be razed. 
All historical development contains conservatism, progress, and 
revolution, as Christianity itself is most conservative and most 
revolutionary. The vital question is, when they are in place. 
And from all that has been stated, it must have appeared that 
the institution greatly aids in the best progress of which so- 
ciety is capable, that which consists in organic changes, changes 
which lie in the very principles of continuity and conservatism 
themselves. 

There are no countries on the European continent where 
such constant and vast changes are going on, in spite of all 
their outer revolutions, as in the United States and England, 
for the very reason that they are institutional governments — 
that there exists self-government with them ; yet they move 
within their institutions. This truth is symbolically exempli- 
fied in Westminster Abbey and the Champ-de-Mars. Century 
after century the former has stood, and what course of his- 



AND SELF-GOVERNMENT. 



343 



torical development has flowed through it ! What representa- 
tive festivities, on the other hand, from the feast of the uni- 
versal federation of France in 1790 to the distribution of 
eagles to the army in May, 1852, have succeeded each other 
on the latter — revolutionary, conventional, republican, impe- 
rial, royal, imperial-restorational, again Bourbonian, Orlean- 
istic, socialistic, and uncrowned-imperialist and imperial — yet 
centralism has worked its steady dis-individualizing way 
through all. 1 There are " sermons in stones," and sermons 
in places. 



1 The following is taken from a late (1852) French paper. It is of sufficient 
symbolic interest to find a place in a note : 

In 1790, on the 14th of July, the anniversary of the taking of the Bastile was 
celebrated by what was called the Fete of the Universal Federation of France. 
Delegations were sent to it by every department, city, town, and village in the 
country, all eager to manifest their enthusiasm for the revolution of 1789. Every 
hundred of the National Guards was represented by six members ; and there 
were also six deputies from every regiment of infantry, and four for every regi- 
ment of cavalry. These " confederates," as they were styled, were all enter- 
tained by the inhabitants of Paris, who are said to have rivalled each other in 
hospitality. In order to afford facilities to the immense number of spectators 
who were expected on the Champ-de-Mars, over twelve thousand workmen 
were employed to surround it with embankments. Fears, however, being still 
entertained that the work would not be completed in time, all Paris turned out 
to assist. Men, women, and children, the National Guard, priests even, and 
sisters of charity, all took part in it. The Abbe Sieyes and Viscount Beauharnais 
were seen tugging together at the same wheelbarrow. At the entrance to the 
field was erected an immense triumphal arch; while in the centre was raised an 
altar, called the Altar of the Cotintiy, at which officiated Talleyrand, then bishop 
of Autun. A bridge of boats was stretched across the Seine, near the Champ-de- 
Mars, where since has been erected the bridge of Jena. 

In 1 79 1, on the 18th of September, there was a splendid F2te for the publica- 
tion of the constitution, and for receiving the oath of fidelity to it from Louis 
XVI. 

In 1792, on the 15th of April, the Fete of Liberty was. celebrated. The centre 
of attraction was an enormous car, in which was placed a statue of Liberty, 
holding a liberty-cap in one hand, and in the other a club. To such an extent 
was the principle of freedom carried on this occasion, that there was not a single 
policeman present to preserve order. The master of ceremonies was armed only 
with an ear of corn : nevertheless, there is said to have been no disorder. 

In 1793, there was a fete in honor of the abolition of slavery. On the loth 
of August of the same year, there was a. file for the acceptance of the constitution 



344 0N CIVIL LIBERTY 

of 1793. The president of the convention received eighty-three commissioners 
from the departments ; after which the registers upon which were inscribed the 
votes of the Primary Assemblies were brought to him, and he deposited them 
upon the "Altar of the Country," amid the firing of cannon, and the rejoicing 
of the people, who swore to defend the constitution with their lives. On the 
2d of December following, the Fete of Victo7'ies took place, in celebration of the 
taking of Toulon. On this occasion the Altar of the Country was transformed, 
by the poet-painter David, into a temple of immortality. 

In 1794, on the 21st of January, the anniversary of the death of Louis XVI. 
was celebrated by all the principal authorities going to the Altar of the Country 
and renewing their oath of hatred to royalty. On the 9th of June of the same 
year, the Fete of the Supreme Being commenced at the Tuileries, and was termi- 
nated on the Champ-de-Mars. In the centre of the plain a " Mountain" was 
thrown up, surmounted by an oak. On the summit of the mountain were seated 
the representatives of the people; while near them were a number of young 
men, with drawn swords in their hands, in the act of striking a symbolical figure 
of the " monster fanaticism." 

In 1796, on the 21st of January, the anniversary of the death of Louis XVI. 
was again celebrated. All the public functionaries renewed once more their 
oath of hatred to royalty, and the people spent the day singing the Marseillaise, 
Cd ira, and various patriotic songs. On the 30th of March following, the Fete 
of Youth took place, on occasion of arming all the young men over sixteen years 
of age ; and on the 30th of April, on the proposition of Carnot, the Fete of 
Victories was celebrated. 

In 1798, on the 20th of March, was the Fete of the Sovereignty of the People. 
On the tenth Vendemiaire, there was a funeral fete in memory of General Hoche. 
On the tenth Messidor, the File of Agriculture took place, with a great display 
of chariots, cattle, fruits, etc. During the five supplementary days of the revo- 
lutionary year, there was a series of fites, with an exposition of all the products 
of French industry, on the Champ-de-Mars. 

In 1 80 1 there were fetes in memory of the foundation of the Republic, and in 
celebration of general peace, which were attended by the First Consul. 

In 1804, on the 10th of November, Napoleon, then emperor, repaired to the 
Champ-de-Mars, and there received the oath of fidelity and obedience from 
deputations Representing all the corps of the army. 

In 1814, on the 7th of September, the government of the Restoration dis- 
tributed colors to the National Guard of Paris. The object of this distribution 
was to efface, if possible, even the memory of the eagles of the empire and of 
the tri-colored standard of the revolution. An altar, glittering with gold and 
costly drapery, was erected near the military school, and in front was placed the 
throne, occupied by Louis XVIII., who was accompanied by the Count of Artois, 
the Duke of Angouleme, and the Duke of Berri. Mass was celebrated by the 
archbishop of Paris, M. Talleyrand-Perigord, uncle of the bishop of Autun,who, 
as we have seen, officiated at the Fife of Federation in 1790. The National 
Guards defiled before the throne, while the band played Vive Henri IV and 
Charmante Gabrielle. 



AND SELF-GOVERNMENT. 345 

In 1815, on the 1st of June, there was z.fUe in celebration of the return of the 
emperor. Napoleon appeared on the throne with his three brothers. A mass 
was performed ; the constitution was acclaimed with enthusiasm ; and the air 
was rent with cries of Vive Napoleon ! The oath was taken with enthusiasm. 
Napoleon addressed the soldiers from the throne in the following words : 

"Soldiers of the National Guard of Paris; soldiers of the Imperial Guard; 
I confide to you the imperial eagle, with the national standard. You sWear to 
defend it with your lives, if need be, against the enemies of the country and this 
throne. You swear never to rally under any other banner." 

During the restoration, the Champ-de-Mars was used chiefly for reviews of the 
National Guard ; the most notable of which was the last one passed by Charles 
X., when the citizens manifested that hostility to the king which was a prelude 
to the revolution of 1830. 

In 1837 there was a grand fete in honor of the marriage of the Duke of Or- 
leans, on which occasion the crowd in the Champ- de- Alar s was so great that 
twenty-four persons were suffocated or crushed to death. During most of the 
reign of Louis Philippe, however, the principal gatherings in the Champ-de-Mars 
were on occasion of military reviews and horse-races. 

In 1848, on the 22d of May, the Fete of Concord was celebrated with great 
pomp. The Moniteur alluded to the occasion thus: 

" This solemnity was celebrated with an eclat enhanced by the magnificent 
weather. Under so clear a sky, and surrounded by so many joyful countenances, 
how was it possible to experience any feelings but those of love, conciliation, and 
harmony ? What struck us, especially, was the attitude, so full of enthusiasm 
and confidence, of the vast concourse of people that crowded the Champ-de- 
Mars ; cries, a thousand times repeated, of Vive la Repiibliqne ! Vive la Re- 
publiquc Democratique ! Vive V Assemblee Nationale ! broke out, in formidable 
chorus, every instant, as if to proclaim the respect of the people for the institu- 
tions which they have adopted, and their invincible repugnance to every retro- 
grade or reactionary idea." 

To the foregoing must be added the gigantic military /£/<? on the loth of May, 
1852, called the Fete of Eagles, that is, the distribution of eagles to all the regi- 
ments of the army. A cock had been adopted as symbol of the first republic, 
owing either to an etymological misconception of the word Gallia, or to an in- 
tended pun on it. The emperor adopted the Roman eagle; the Bourbons 
brought back the three fleurs-de-lys; and in 1830 the cock was restored. Louis 
Napoleon, when president for ten years, restored the imperial eagle. It must.be 
owned, the cock looked very much as our turkey would have looked had we 
adopted Franklin's humorous proposition of selecting our native and respectable 
turkey, instead of our fine native eagle. 

What feast will be celebrated on the same spot next ? Whatever it may be, 
probably it will be nothing intrinsically different from the last. 



346 ON CIVIL LIBERTY 



CHAPTER XXIX. 

ADVANTAGES OF INSTITUTIONAL GOVERNMENT, FARTHER 
CONSIDERED. 

There are some additional observations suggested by the 
subject of institutional self-government and by that of the 
institution in general, which have been deferred in order to 
avoid an interruption of the general argument, and to which 
it is necessary now to turn our attention. 

It seems to me a symptomatic fact that the term People has 
at no period, so far as I am acquainted with the domestic his- 
tory of England, become in politics a term of reproach, not 
even in her worst periods. On the contrary, the word People 
has always been surrounded with dignity, and when Chatham 
was called "The people's minister," it was intended by those 
who gave him this name as a great honor. It was far different 
on the continent. In French, in German, and in all the conti- 
nental languages with which I am acquainted, the correspond- 
ing words sank to actual terms of contempt. The word Peuple 
was used in France, before the first revolution, by the higher 
classes, in a disdainful and stigmatizing sense, and often as 
equivalent with canaille — that term which played so fearful a 
part in the sanguinary drama of the revolution, and which 
Napoleon purposely used, in order emphatically to express 
that he was or wished to be considered the man of the people, 
when he said, somewhat soldierly : Je suis moi-meme sorti de 
la canaille. 1 In German, the words Volk and Nation came 



1 The Dictionary of the Academy gives, as the last two meanings of the word 
Peuple — unenlightened men, and men belonging to the lowest classes. Trench, 
in his Lessons in Proverbs, quotes the French Jesuit Bonhours, who says: Les 
proverbes sont les sentences du peuple, et les sentences sont les proverbes des 
honnetes gens. (But there are very wicked proverbs.) Honnete means, indeed, 
frequently something like the Latin honeslzis, and not exclusively our honest, but 



AND SELF-GOVERNMENT. 347 

actually to be used as vilifying invectives, even by the lower 
classes themselves. The words never ceased, indeed, to be 
used in their legitimate sense, but they were vulgarly applied 
in the meaning which I have given. They acquired this 
ignominious sense because the nobility, a very numerous 
class on the continent, looked with arrogance upon the people, 
and the people, looking up to the nobility with stolid admira- 
tion, aped the pride of that class. It is a universal law of 
social degradation that it consists always of a chain of de- 
graded classes who at the same time are or try to be in turn 
degraders, as oppression begets the lust of oppressing in the 
oppressed. 

On the other hand, the English word People has never 
acquired, not even during the English revolution, that import 
of political horror which Demos had in the times of Cleon for 
the reflecting Athenian, or Peuple in the first French revolu- 
tion. What is the cause of these remarkable facts ? I can see 
no other than that there has always existed a high degree of 
institutional self-government in England — a very high degree, 
if we compare her to the continent. The people never ceased 
to respect themselves ; and others never ceased to feel their 
partial dependence upon them. The aristocracy of England, 
a patrician body, far more elevated than any continental no- 
bility, still remained connected with the people, by the fact 
that only one of the patrician family can enjoy the peerage. 
This distinction does not, therefore, indicate a social status, 
inhering in the blood ; for that runs in the whole family. It 
indicates a political position. 1 



even with this addition the English term People could never have been contradis- 
tinguished from honnites gens. To these remarks we must add the mischievous 
error of giving the dignified name the people to some people gathered together in 
the street. We find, in the French papers and other publications, at the time of 
the first revolution, constant use of the term in such manner, as : le peuple has 
hanged a baker, etc., when the murder was committed by a rabble of a few. 
This confusion of a few lawless people with the people, for whom the sovereign 
power was claimed, and, in turn, the arrogation of the sacred name by a few 
Parisians, may be observed throughout the history of the revolution. 

1 Aristocratic as England is in many respects, it is nevertheless true that there 



348 ON CIVIL LIBERTY 

Possibly most of my American and English readers may 
not perceive the whole import of these remarks ; but let them 
live for a considerable time on the continent of Europe, and 
their own observations will not fail to furnish them with com- 
mentaries and full explanations of the preceding pages. 

Another subject to which I desire to direct attention is 
Usage, which, as it has been stated, forms an important element 
of the institution, and, consequently, of institutional govern- 
ment. This is frequently not only admitted by the absolutists, 
but in bad faith insisted upon. Continental servilists fre- 
quently eulogize the liberty of the English, but wind up by 
pointing at their institutions and their widely-spread usages, 
observing that since these are necessary and do not exist on 
the continent, neither can liberty exist. It is a faithless plea 
for servilism. An adequate reply is this : that in no sphere 
can we attain a given end if we do not make a beginning and 
are not prepared for partial failures during that beginning. 
If spelling is necessary before we can attain to the skill of 
reading, we must not withhold the spelling-book from the 
learner ; and we ought never to forget the law to which I have 
alluded in a previous part of this work, namely, that the 
advancement of mankind is made possible, among other things, 
by the fact that when a great acquisition is once made on the 
field of civilization, succeeding generations, or other clusters 
of men, are not obliged to pass through all the stages of 
painful struggle, or tardy experience, which may have been 
the share of the pioneering nation. 

The third additional remark I desire to make is, that insti- 



is no nobility in the continental sense. The law knows of peers, hereditary law- 
givers, but it does not know even the word nobleman. The peerage is connected 
with primogeniture, but there is no English nobility in the blood. The idea of 
mesalliance has, therefore, never obtained in England. There is no doubt that 
the little disposition of the English shown at any time to destroy the aristocracy 
is in a great measure owing to this fact, as doubtless the far more judicious spirit 
of the English peers to yield to the people's demands, if clearly and repeatedly 
pronounced, has contributed much. Mr. Hallam has very correct remarks on 
the subject of English equality of civil rights, where he speaks of the reign of 
Henry III. 



AND SELF-GOVERNMENT. 



349 



tutional and diffused self-government is peculiarly efficient in 
breaking those shocks which, in a centralized government, 
reach the farthest corners of the country, and are frequently 
of a ruinous tendency. This applies not only to the sphere 
of politics proper, but to all social spheres which more or less 
affect the political life of a nation. There are two similar 
cases in French and English history which seem to illustrate 
this fact with peculiar force. 

Every historian admits that the well-known and infamous 
necklace affair contributed to hasten on the French revolution, 
by degrading the queen, and, through her, royalty itself, in the 
eye of France, which then believed in her culpable participa- 
tion. England was obliged to behold a far more degrading 
exhibition — the trial of Queen Caroline, the consort of George 
IV. There was no surmise about the matter. Royalty was 
exhibited before the nation minutely in the fullest blaze of 
publicity, and mixed up with an amount of immundicity the 
exact parallel to which it is difficult to find in history. Every 
civilized being seemed to be interested in the trial. The por- 
trait of the queen and her trial were printed on kerchiefs and 
sold all over the continent. The trial, too, took place at a 
somewhat critical period in England. Yet I am not aware 
that it had any perceptible effect on the public affairs of Eng- 
land. The institutions of the country could not be affected by 
it, any more than high walls near muddy rivers are affected 
by the slime of the tides. But royalty on the continent, try- 
ing at that very time to revive absolutism founded upon divine 
right, 1 was damaged by the people thus seeing that the purple 
is too scant to cover disgrace and vulgarity. 



1 It was the time when Haller wrote his Restoration of Political S:'ences, in 
which he endeavors to excel Filmer, and does not blush to hold up uncom- 
promising absolutism, although a native of Switzerland. Having secretly become 
a Catholic, he passed into the service of the Bourbons. The student of political 
science, desirous of making himself acquainted with the political literature of the 
European continent of this period in its whole extent, is referred to a German 
work of a high order, Robert von Mohl's History and Literature of the Political 
Sciences, 3 vols., large 8vo, Erlangen, 1855 to 1858, (containing 2052 pages.) 



350 



ON CIVIL LIBERTY 



Let an American imagine what would be the inevitable 
consequences of local or sectional errors and excitements, of 
which we are never entirely free, if we did not live under a 
system of varied institutional self-government ; each shock 
would be felt from one end of our country to the other with 
unbroken force. Had we nothing but uninstitutional Gallican 
universal suffrage, spreading like one undivided sea over the 
whole, we could not continue to be a free people; and would 
hardly be a united people, though not free. 

A similar remark may be made with reference to that period 
in French history which actually obliges the historian to be at 
least as familiar with the long list of royal courtesans 1 as with 
the prime ministers. The effect of this example of the court 
has been most disastrous to all France. The courts of Eng- 
land under Charles II. and James II. were no better. The 
conduct of George I. and George II. added coarseness to 
incontinency. The English nobility followed very close in 
the wake of their royal masters ; but with them the evil 
stopped. The people of England — England herself — remained 
comparatively untouched, and, while the court plunged into 
vices, the people went their own way, rising and improving. 
Had England been an uninstitutional country, the effect must 
have been the same as that which ruined France. 

Another observation suggested by the subject which we are 
discussing is, that a wide-spread and penetrating institutional 
self-government has the same concentrative effect upon society 
which a careful and responsible occupation with one's own 
affairs and duties has upon the individual. This may indeed 
be counteracted and suspended by other and more powerful 
circumstances ; but the natural effect of institutional self- 
government is, I believe, such as I have just indicated. 



The comprehensive erudition and liberal judgment of the author, as well as the 
patient research in the literature of the day and the past and of all civilized 
countries, make this work a storehouse of historical and critical knowledge con- 
cerning political literature, for which every scholar of this branch must feel 
deeply indebted to him. 

1 The very etymology, with its present meaning, is significant. 



AND SELF-GOVERNMENT. 



351 



A large and active nation, which therefore instinctively 
seeks a political field of action for its energy, and which, 
nevertheless, is destitute of self-ruling institutions, will gen- 
erally turn its attention to conquest or any other increase of 
territory, merely for the sake of conquest or of increased 
extent, until a political gluttony is produced which resembles 
the immoderate desire of some farmers for more land. They 
neglect the intensive improvement of their farm, and are 
known by every experienced agriculturist to be among the 
poorest of their class. Expansion may become desirable or 
necessary ; but a desire of extension merely for the sake of 
extension is at once the most debilitating fever of a nation 
and the rudest of glories, in which an Attila or Timour far 
excels a Fabius or a Washington. So soon as a nation aban- 
dons the intensive improvement of its institutions, and directs 
its attention solely to foreign conquest, it enters on its down- 
ward course, and loses the influence which otherwise might 
have been its share. The truest, most intense, and most en- 
during influence a people exercises upon others is through its 
institutions and their progressive perfection. 1 The sword does 
not plough deep. 

This is the reason, it may be observed, why the historian, 
the more truly he searches for the real history of nations, and 
the more his mind acquires philosophical strength, becomes 
the more attentive to the political life manifested by the in- 



1 There are persons among us who have fallen into this error; and it will 
always be found that they proportionately disregard our institutions, or are not 
imbued with esteem for institutional government. I lately received a pamphlet 
in which the author wishes for a confederacy embracing America from Greenland 
to Cape Horn. " Universal governments" were the dream of Henry IV., and 
again pressed into service by Napoleon. I am not able to answer the reader, 
why that confederacy should comprehend America only. There is no principle 
or self-defining idea in the term America. America is a name. The water 
which surrounds it has nothing to do with principles. Water, once the Disso- 
ciabile Mare, now connects. Polynesia ought to be added, and perhaps Further 
Asia, and why not Hindostan ? Our oath of allegiance might be improved by 
promising to be faithful to the United States et cetera, as Archbishop Laud's 
famous oath bound the person who took it upon an Et Cetera. 



352 ON CIVIL LIBERTY 

stitutions of a people. It distinguishes a Niebuhr from a 
common narrator of Rome's many battles. 1 

On the other hand, we may observe a similar effect upon 
cabinets. It seems to me one of the best effects of local and 
national self-government, with its many elementary institu- 
tions and a national representative government, that diplo- 
macy ceases to form the engrossing subject of statesmanship. 
Shrewd as English diplomacy has often proved, the history of 
that country, in the eighteenth century, is a totally different 
one from that of the other European countries in the same 
period. It seems as if continental statesmanship sought for 
objects to act on, in foreign parts, in concluding alliances 
and making treaties ; in one word, as if diplomacy had been 
cultivated for the sake of diplomacy. Yet nothing is surer to 
lead to difficulties, to wars and suffering, than this reversed 
state of things. 2 

Some remarks on the undue influence of capitals in coun- 
tries void of institutions would find an appropriate place here ; 
but they are deferred until we shall have considered some- 
what more closely the peculiar attributes of centralization, the 
opposite of institutional self-government. 

Patience, united with energy, is as much an element of 
progress and efficient action in public concerns as in private 
matters. Mr. Lamartine has feelingly said some excellent 
truths on this subject, in his Counsellor for the People ; but it 
does not seem possible to unite the two in popular politics and 



1 The same phenomenon may be observed in the more philosophical division 
of history. People begin to divide the history of a nation by the monarchs, or 
by any other labelling. When they penetrate deeper, they divide history by the 
rise and fall of institutions, of classes, of interests, of great ideas. To divide the 
history of England by George I. and George II. is about as philosophical as if 
a geologist were to color a chart, not according to the great layers that constitute 
the earth, but by indicating where the people walking upon it wear shoes or 
sabots, or walk barefooted. 

2 We oughl to compare the repeated advice of the greatest of Americans, to 
beware of alliances, with the contents of such works as Raumer's Diplomatic 
Dispatches of the Last Century. It is for this reason that the present publicity of 
diplomacy has such vital importance. 



AND SELF-GOVERNMENT. 353 

in the service of liberty, except by the self-government which 
we are contemplating. Patience, as well as desire of action, 
can exist separately without an institutional government, but 
in that case they are both destructive to freedom. Activity, 
without institutions, becomes a succession of unconnected 
efforts ; patience, without institutions that constantly incite 
by self-government, and rouse as much as they form the mind, 
becomes mere submission, and ends in Asiatic resignation. 

It would seem, also, that by a system of institutional self- 
government alone the advantage can be obtained of which 
Aristotle speaks, when he says that the psephisma (the par- 
ticular and detailed law) ought to be made so as to suit the 
given cases by the Lesbian canon, 1 and ought to be applied so 
as to fit the exact demands. 

It is on account of the institutional character of the British 
polity in general and of the English constitution in particular 
— on account of the supremacy of the law and of the spirit 



1 The cyclopean walls in Greece and Italy, built before the memory even of 
the ancients, and many of which still stand as firm as if raised in recent times, 
have their strength in the irregularity of the component stones, and the close 
fitting of one to the other, so that no interstices are left even for a blade of grass to 
grow. An irregular polygonal stone was placed first; sheets of lead were then 
closely fitted to the upper and lateral surfaces. When taken off, they served as 
the patterns according to which the stones to be placed next were hewn. It was 
this sheet and this mode of proceeding which was called the Lesbian canon or 
rule, while the canon or rule which the architect laid down alike for all stones 
of an intended wall was called a general canon. See On the Cyclopean Walls, 
by Forchhammer, Kiel, 1847. Now, Aristotle compai-es the general law, the 
nomos, to the general canon, but the particular law, the psephisma, ought, as he 
says, to be made by the Lesbian canon. Ethica ad Nicomachum, 5, 14. It is 
inelegant, I readily confess, to use a figure which it is necessary to explain, but I 
am not acquainted with any process in modern arts similar to the one used as an 
illustration by the great philosopher, except the forming of the dentist's gold plate 
according to a mould taken from nature itself. I naturally preferred the simile 
of the philosopher, even with an explanatory note, to the unbidden associations 
which the other simile carries along with it. Nor would I withhold from my 
reader the pleasure we enjoy when a figure or simile is presented to us so closely 
fitting the thought, like the Lesbian canon, and so exact that itself amounts to the 
enunciation of an important truth, well formulated. This is the case with Aris- 
totle's figure. 

23 



354 



ON CIVIL LIBERTY 



of self-government which in a high degree pervades the whole 
polity and society of that country, that, long ago, I did not 
hesitate to call England a royal republic. 1 Dr. Arnold, some 
five years later, expressed the same idea, when in the intro- 
duction to his Roman History he styles his country "a kingly 
commonwealth." It will be hardly necessary to add that the 
British commonwealth is in many respects of a strongly pa- 
trician character, that it is occasionally aristocratic, and that 
the Englishman believes one of the excellencies of his polity 
to consist in the fact that it contains in the monarch an 
element of conservatism apparently high above the contending 
elements of progress and popular liberty. 2 What advantages 
and disadvantages may be wound up in this portion of her 
constitution, and how far the actual position of Great Britain, 
the state of her population and her historical development, 
may make it necessary, it is not our task to investigate, any 
more than to inquire whether the steady progress of England 
has not been toward a more and more fully developed institu- 
tional self-government and virtual republicanism, or whether 
the absolutists of the continent may be right when they main- 
tain that England is no bona fide monarchy, and by her unfor- 
tunate example is the chief cause of European unrest, by which 
of course the advocates of despotic power mean the popular 
longing for liberty. 

My expression has been called "very bold." Whether it 
be so or not is of little importance. I have given my reason 



1 In my Political Ethics, first published in 1838. 

2 I do not know that this opinion was ever more strikingly symbolized than 
lately, when Lord John Russell,the leader of the administration in the commons, 
moved an address of congratulation to the queen on the birth of a prince, and Mr. 
Disraeli, the leader of the opposition in the same branch, seconded the motion, 
while a similar motion was made in the lords by Lord Aberdeen, the premier of 
the administration, seconded by the Earl of Derby, the premier of the lately 
ousted administration, and very bitter opponent to the present ministry. What 
the queen is, in this respect, in England, the constitution, or rather the Union, 
is in the United States. Our feelings of loyalty centre in these, but not in oui 
president, any more than an Englishman's loyalty finds a symbol in his prime 
ministei 



AND SELF-GOVERNMENT. 355 

why I have called the English polity thus, and I may be per- 
mitted to add that in doing so I meant to use no rhetorical 
expression, but philosophically to designate an idea, the truth 
of which has been ever since impressed on my mind more 
strongly by extended study and the ample commentaries with 
which the last lustres have furnished the political philosopher. 
The opposite idea was expressed by a French politician of 
distinction, when, in writing favorably of Louis Napoleon after 
the vote which succeeded the second of December, but before 
the establishment of the imperial throne, he said : " universal 
suffrage is the republic." z It will be our duty to consider more 
in detail the question, whether inorganic, bare, universal suf- 
frage has any necessary and intrinsic connection with liberty 
or not, and to inquire into the consequences to which unin- 
stitutional suffrage always leads. In this place I would only 
observe that if he means by republic a polity bearing within its 
bosom civil liberty, the dictum is radically erroneous. If by 
republic, however, nothing is meant but a kingless state of 
politics, irrespective of liberty or the good government of 
freemen, it is not worth our while to stop for an inquiry. 
Nothing, indeed, is more directly antagonistic to real self- 
government than inorganic universal suffrage spreading over 
a wide dominion. I would also allude once more to the fact 
that universal suffrage is, after all, a modus, and not the 
essence. If, however, it leads to the opposite of self-govern- 
ment, we have no more right to call it "the republic," or 
to consider it a form of liberty, than those ancient Germans 



1 Mr. Emil Girardin, who has been referred to several times. He is an un- 
reserved writer, who knows how to express his ideas distinctly, and who is a 
representative of very large numbers of his countrymen. In connection with the 
expression of Mr. Girardin given in the text, the dictum of the Emperor Napo- 
leon III. about the time of his elevation to the throne, may be given. He said : 
In crowning me, France crowns herself. The reader will find at the end of this 
work a similar expression of the emperor, when he opened the restored Louvre, 
namely, that France, in building palaces for her kings, built them to honor her- 
self and to symbolize her unity. Unfortunately, Louis XIV. sorely repented on 
his death -bed his passion for building, and expressed it in warning counsel to 
Louis XV. 



356 ON CIVIL LIBERTY 

had a right to be proud of their liberty, whom unsuccessful 
gaming had led into slavery, if Tacitus reports the truth. 

According to the French writer, the Roman republic might 
be said to have continued under the Caesars, who were elected 
to their office, and an elective monarchy would present itself 
as an acceptable government, while in reality it is one of the 
worst. For it possesses nearly all the evils inherent in the 
monarchical government, without its advantages, and all the 
disadvantages of a republic, vastly increased, without its ad- 
vantages. History, I think, fully bears us out in this opinion, 
notwithstanding one authority — the only one of weight I can 
remember — to the contrary. z 



1 Lord Brougham, in his Political Philosophy, speaks in terms of high praise 
of the elective government of the former Germanic empire. Native and con- 
temporary writers have not done so. It was only after the expulsion of the 
French, and when the German people instinctively longed for German unity and 
dignity, that, at one time, a poetic longing for the return of the medieval empire 
was expressed by some. If there be any German left who still desires a return 
to the elective empire, he must be of a very retrospective character. 



AND SELF-GOVERNMENT. 357 



CHAPTER XXX. 

INSTITUTIONAL GOVERNMENT THE ONLY GOVERNMENT WHICH 
PREVENTS THE GROWTH OF TOO MUCH POWER. — LIBERTY, 
WEALTH, AND LONGEVITY OF STATES. 

Universal suffrage is power — sweeping, real power — so 
vast, that even its semblance bears down everything before it. 
Uninstitutional universal suffrage may be fittingly said to turn 
the whole popular power and national sovereignty — the self- 
sufficient source of all derivative power — into an executive, 
and thus fearfully to confound sovereignty with absolute power, 
absolutism with liberty. 

Yet the idea of all government implies power, while that 
of liberty implies check and protection. It is the necessary 
harmony between these two requisites of all public vitality 
and civil progress which constitutes the difficulty of establish- 
ing and maintaining liberty — a difficulty far greater than that 
which a master-mind has declared the greatest, namely, the 
founding of a new government. 1 



1 Machiavelli — tanto nomini nullum par elogium — says in his Prince, "But in 
the new government lies the greatest difficulty." This depends upon circum- 
stances. He undoubtedly had in mind the difficulty of uniting Italy, or rather 
of eliminating so many governments and establishing one Italian state. For 
there has been no noble Italian, since the times when Dante called his own Italy, 
Di dolor ostello, that does not yearn for the union of his noble land, and look for 
the realization of his hopes as fervently as he believes in a God. Machiavelli 
was one of the foremost among these true Italians. But he had not lived through 
our times. There are times when the people throw themselves into the arms of 
any one that possibly may save them from impending or imaginary shipwreck, or 
promises to do so. Wearied people will take a stone for a pillow, and no per- 
sons deceive themselves so readily as the panic-stricken. On such occasions it 
is easy to establish a new government, especially if cumbersome conscience is set 
aside. The reverse of Machiavelli's dictum then takes place, and the greatest 
difficulty lies in maintaining a government. This applies even to administra- 



358 ON CIVIL LIBERTY 

Power is necessary; an executive cannot be dispensed with; 
yet all power has a tendency to increase, and to clear away 
opposition. It would not be power if it had not this tendency. 
How then is liberty to be preserved? A new power may be 
created to check the first, like the Roman tribune; but the 
newly-created power is power, and how is this in turn to be 
checked ? Erecting one tier of power over the other affords 
no remedy. The chief power may thus be made to change its 
name or place; but the power, with all its attributes, is there. 

Nor will it be supposed that salvation can be found in the 
mere veto, however multiplied. For the veto, although ap- 
pearing negative with reference to that which is vetoed, never- 
theless is power in itself, and to rest civil liberty upon a 
system of mere vetoes would indeed be expecting life, action, 
growth, and that which is positive, from a system of nega- 
tivism. A government without power and inherent strength 
is, like aught else without power, useless for action. Yet action 
is the object of all government. The single Polish nobleman 
who possessed the rakosh or veto had a very positive but a 
very injurious power. It was the pervading idea, in the 
middle ages, to protect by the requisition of unanimity of 
votes on all important questions. But, on the one hand, this 
is the principle which belonged to the disjunctive state of the 
middle ages, not to our broad national liberty ; and, on the 
other hand, unanimity does not of itself insure protection or 
liberty. Tyranny or corruption has often been unanimous. 

The only way of meeting the difficulty is to prevent the 
overbearing growth of any power. When grown, it is too 
late ; and this cannot be done by putting class against class, 
or interest against interest. One of these must be stronger 
than the other, and become the absorbing one. Nor is the 
problem we have to solve, discord. It is harmony, peace, 
united yet organic action. History or speculation points to 
no other solution of this high problem of man, than a well- 



tions and ministries. All is pleasant sailing at first. A new power charms like 
a rising sun ; but the heat of noon follows upon the morning. 



AND SELF-GOVERNMENT. 



359 



grounded and ramified system of institutions, checking and 
modifying one another, strong and self-ruling, with a power 
limited by the very principle of self-government within each, 
yet all united and working toward one common end, thus pro- 
ducing a general government of a co-operative character, and 
serving, in many cases in which, without institutions, interests 
would jar with interests, as friction-rollers do in machinery. 

The institution is strong within its bounds, yet not feared, 
because necessarily bounded in its action. What can be more 
powerful than the king's bench in England, in each case in 
which it acts within its own limits ? Now older than five hun- 
dred years, it has repeatedly stood up against parliament with 
success. Yet no one fears that its power will invade that of 
other institutions ; nor did the people of the state of New York 
apprehend that the court of appeals might become an invasive 
power, when in its own legitimate and efficient way it lately 
declared the Canal Enlargement Law, which had been passed 
by a great majority, unconstitutional, and consequently null 
and void. 

Seeking for liberty merely or chiefly in a vetitive power of 
each class or circle, interest or corporation, upon the rest, 
as has been often proposed, after each modern revolution, 1 
would simply amount to dismembering, instead of construct- 
ing. It would produce a multitudinous antagonism, instead 
of a vital organism, and it would be falling back into the 
medieval state of narrow chartered independencies. We can- 
not hope for liberty in a pervading negation, but must find 
it in comprehensive action. All that is good or great is cre- 
ative and positive. Negation cannot stand for itself, or impart 
life. But that negation which is necessary to check and re- 
frain is found in the self-government of many and vigorous 
institutions, as they also are the only efficient preventives of 
the undue growth of power. If they are not always able to 
hinder it, man has no better preventive. When in the seven- 



1 Harris, in his Oceana, St. Just, in the first French revolution, and many 
former and recent writers, might be mentioned. 



360 ON CIVIL LIBERTY 

teenth century the Danes threw themselves into the power of 
the king, making him absolute, in order to protect themselves 
against baronial oppression, they necessarily created a power 
which in turn became oppressive. The English, on the con- 
trary, broke the power of their barons, not by raising the 
king, but by increasing self-government. 

We find, among the characteristic distinctions between 
modern history and ancient, 1 the longevity of modern states, 
contemporaneous progress of wealth or culture and civil 
liberty, and the national state as contradistinguished from the 
ancient city-state, the only state of antiquity in which liberty 
existed. These are not merely facts which happen to present 
themselves to the historian, but they are conditions upon which 
it is the modern problem to develop liberty, because they are 
requisites for modern civilization, and civilization is the com- 
prehensive aim of all humanity. 

We must have national states (and not city-states ;) we must 

1 These differences between antiquity and modern times, all of which are more 
or less connected with Christianity and the institution, are : 

1. That in antiquity only one nation flourished at a time. The course of his- 
tory, therefore, flows in a narrow channel, and the historian can easily arrange 
universal ancient history. In modern periods, many nations flourish at the 
same time, and their history resembles the broad Atlantic, on which they all 
freely meet. 

2. Ancient states are short-lived; modern states have a far greater tenacity of 
life. 

3. Ancient states, when once declining, were irretrievably lost. Their history 
is that of a rising curve, with its maximum and declension. Modern states have 
frequently shown a recuperative power. Compare present England with that of 
Charles II., France as it is with the times of Louis XV. 

4. Ancient liberty and wealth were incompatible, at least for any length of 
time ; modern nations may grow freer while they are growing wealthy. 

5. Ancient liberty dwelt in city-states only; modern liberty requires enlarged 
societies — nations. 

6. Ancient liberty demanded disregard ot individual liberty; modern liberty 
is founded upon it. 

7. The ancients had no international law. (Nor have the Asiatics now. The 
incipiency of international law is, indeed, visible with all tribes, for they are 
men. The Romans sent heralds to declare war, and the Greek, advised to 
poison his arrows, declines doing so, " for," Komer makes him say, " I fear the 
gods will punish me.") 



AND SELF-GOVERNMENT. 361 

have national broadcast liberty (and not narrow chartered 
liberty;) we must have increasing wealth, for civilization is 
expensive ; we must have liberty, and our states must endure 
long, to perform their great duties. All this can be effected 
by institutional liberty alone. It is neither affirmed that 
longevity alone is the object, nor that it can be obtained by 
institutions alone. Russia, peculiarly uninstitutional, because 
it unites Asiatic despotism with European bureaucracy, has 
lasted through long periods, even though we may consider 
the late celebration of its millennial existence as a great offi- 
cial license. All we maintain here is, that longevity, together 
with progressive liberty, is obtainable only by institutional 
liberty. England, now really a thousand years old, presents 
the great spectacle of an old nation advancing steadily in 
wealth and liberty. She is far richer than she was a century 
ago, and her government is of a far more popular cast. In 
ancient times, it was adopted as an axiom that liberty and 
wealth are incompatible. Modern writers, down to a very 
recent period, have followed the ancients. Declaimers fre- 
quently do so to this day ; but they show that they do not 
comprehend modern liberty and civilization. Modern in-door 
civilization, with all her schools and charities and comforts 
of the masses, is incalculably dearer than ancient out-door 
civilization. Modern civilization requires immense produc- 
tion ; it is highly expensive. Yet our liberty needs civilization 
as a basis and a prop ; our progressive liberty requires pro- 
gressive civilization, consequently progressive wealth — not, 
indeed, enormous riches in the hands of a few. Asia possesses 
to this day hoarded treasures in greater number than modern 
Europe has ever known them. 1 We stand in need of im- 
measurable wealth, but it is diffused, widely-spread and widely- 
enjoyed wealth, necessary for widely-diffused and widely-en- 
joyed culture. 

To last long — to last with liberty and wealth — is the great 



1 Indeed, the enormous treasures occasionally met with in Asia are indications 
of her comparative poverty. 



362 ON CIVIL LIBERTY 

problem to be solved by a modern state. Our destinies differ 
from that of brief and brilliant Greece. Let us derive all 
the benefit from Grecian culture and civilization — from that 
chosen nation, whose intellectuality and aesthetics, with Chris- 
tian morality, Roman legality, and Teutonic individuality and 
independence, form the main elements of the great phenom- 
enon we designate by the term modern civilization, without 
adopting her evils and errors, even as we adopt her sculpture 
without that religion whose very errors contributed to pro- 
duce it. 



AND SELF-GOVERNMENT. 363 



CHAPTER XXXI. 

INSECURITY OF UNINSTITUTIONAL GOVERNMENTS. UNORGANIZED 

INARTICULATED POPULAR POWER. 

The insecurity of concentrated governments has been dis- ! 
cussed in a previous part of this work. The same insecurity 
exists in all governments that are not of a strongly institutional 
character. Eastern despotism is exposed to the danger of 
seraglio conspiracies, as much so as the centralized govern- 
ments of the European continent showed their insecurity in 
the year 1848. They tottered, and many broke to pieces, 
although there was, with very few exceptions, no ardent strug- 
gle, and nothing that approached to a civil war. To an 
observer at a distance, it almost appeared as if those govern- 
ments could be shaken by the loud huzzaing of a crowd. 
They have, indeed, recovered; but this may be for a time 
only ; nor will it be denied that the lesson, even as it stands, 
is a pregnant one. 

During all that time of angry turmoil, England and the 
United States stood firm. The government of the latter coun- 
try was exposed to rude shocks, indeed, at the same period; 
but her institutional character protected her. England has had 
her revolution ; every monarchy probably must pass through 
such a period of violent change ere civil liberty can be largely 
established and consciously enjoyed by the people — ere govern- 
ment and people fairly understand one another on the common 
ground of liberty and self-government. But no fact seems 
to be so striking in the revolution of England as this, that all 
her institutions of an organic character, her jury, her common 
law, her representative legislature, her local self-government, 
her justice of the peace, her sheriff, her coroner — all survived 
domestic war and despotism, and, having done so, served as 



364 0N CIVIL LIBERTY 

the basis of an enlarged liberty. The reason of this broad 
fact cannot be that the English revolution did not occur at 
a time of bold philosophical speculation which characterized 
the age of the French revolution. The English religionists 
of the seventeenth century were as bold speculative reasoners 
as the French philosophers, and England's religious fanatics 
were quite as fierce enemies of private property and society 
as the French political fanatics were. It was, in my opinion, 
pre-eminently her institutional character in general, or the 
wmole system of institutions and the degree of self-govern- 
ment contained in each, that saved each single institution, and 
enabled England to weather the storm when she was exposed 
to the additional great danger of a worthless general govern- 
ment after the restoration. There is a tenacity of life and a 
reproductive principle of vitality exhibited in the whole 
seventeenth century of British history, that cannot be too 
attentively examined by the candid statesmen of our family 
of nations. 

It may be objected to my remarks that Russia, too, has re- 
mained untouched by the attempted revolutions of the year 
1848, although her government is a very centralized one. 
Russia has in some respects much of an Asiatic character, and 
the succession of her monarchs is marked by an almost equal 
number of palace conspiracies and imperial murders or im- 
prisonments. 1 The people, on the other hand, have not yet 
been affected by the political movements of our race'. There 
is in politics, as in all spheres of humanity, such a thing as 
being below and being above an evil. Many persons that are 
free from skepticism are not above it, but the dangerous ques- 
tions have never yet presented themselves ; and many nations 
remain quiet while others are torn by civil wars, not because 
they have reached a settled state above revolution, but be- 
cause they have not yet arrived at the period of contending 
elements. 



1 A London journal said some years ago, with great bitterness, yet with truth : 
A Russian czar is a highly assassinative substance. 



AND SELF-GOVERNMENT. 365 

Russia may be said, in one respect at least, to furnish us 
with the extreme opposite to self-government. " The service," 
that is, public service, or the being a servant of the imperial 
government, has been raised in that country to a real culte, a 
sort of official religion. Any infraction of justice, any hard- 
ship, any complaint, is passed over with a shrug of the shoulder 
and the words " the service." The term Service in its present 
Russian adaptation is the symbol for the most consistent abso- 
lutism, the most passive bureaucracy, and a most automaton- 
like government set in motion by the czar, and it is thus, as it 
was said before, the extreme opposite to our self-government. 

If concentrated governments are insecure, mere unorganized 
and uninstitutional popular power is no less so, and neither 
such power nor mere popular opposition to all government 
is a guarantee of liberty. The first may be the reason why 
all the Athenian political philosophers of mark looked from 
their own state of things, during and after the Peloponnesian 
war, with evident favor upon the Lacedaemonian government 
Lacedsemon was, indeed, no home for individual liberty; but 
they saw in Sparta permanent institutions, and, without having 
arrived at a perfectly clear distinction between an institutional 
government and one of a fluctuating absolute market majority, 
they may have perceived, more or less instinctively, that neither 
permanency nor safety is possible without an institutional 
system. They must have observed that there was no individual 
liberty in Sparta; but her institutional character may have 
struck them, and the contrast may have lent to that govern- 
ment the appearance of substantial value which it did not 
possess in reality. It seems otherwise difficult to explain why 
the most reflecting should have preferred a Lacedsemon to an 
Athens, even if we take into account the general view of the 
ancients, that individuality must be sacrificed to the state — a 
view of which I have spoken at the beginning of this work. 

As to the second position, that the guarantee of liberty can- 
not be sought for in mere opposition to government or in a 
mere negation of power, it is only necessary to reflect that in 
such a state of things one of three evils must necessarily hap- 



366 ON CIVIL LIBERTY 

pen. Either the people are united and succeed in enfeebling 
or destroying the government, in which case again the new 
government possesses the whole sweeping power, and of course 
is in turn a negation of liberty ; thus substituting absolutism 
for absolutism. Or the people are not united, do not succeed, 
and leave the government more powerful and despotic than 
before. Or a state of affairs is brought about in which all 
power is destroyed — political asthenia. It is a state of polit- 
ical disintegration, leading necessarily to general ruin, and 
preparing the way for a new, generally a foreign, power, which 
then rears something fresh upon the ruins of the past — fabrics 
that are cemented with blood and tears. 

There is no other way to escape from the appalling dilemma 
than to unite the people and government into one living organ- 
ism ; and this can only be done by a widely-ramified system 
of sound institutions, instinct with self-government. 

It is not maintained that history does not furnish us with 
instances, of national conditions in which nothing else remained 
possible but a general rising against a government that had 
become isolated from the people ; but nothing is gained if the 
new state of things is not founded upon institutions. This 
is, indeed, a difficult task ; at times it would seem impossible. 
If so, the destruction of the whole is decreed ; and its accom- 
plishment adds another lesson to the many stored up in the 
book of history, that those nations who neglect to provide for 
institutions, and to allow them freely to grow, are walking the 
path of political ruin. 

We are now fully able to judge how utterly mistaken those 
are who endeavor to press the opinion upon the people that 
" there are but two principles between which civilized men 
have to choose — Divine Right and Democratic Might." The 
one is as ungodly as the other. Neither is founded in justice; 
neither admits of liberty ; both rest on the principle of abso- 
lutism. Both are theories fabricated by despotism, false in 
logic, unhallowed in practice, and ruinous in their progress. 

Allusion has been made before to the common mistake 
of those men who are not bred in civil liberty, and are un- 



AND SELF-GOVERNMENT. 367 

acquainted with the appliances of self-government, that they 
believe that popular power alone, uniform, sweeping, and in- 
organic, constitutes liberty, or is all that is necessary to insure 
it. It is doubtless this kind of popular power which is gen- 
erally called democracy in France and other countries of the 
continent. It confounds, as we have seen, things entirely 
distinct in their nature. Power is not liberty. Power is neces- 
sary for protection, and liberty consists in a great measure in 
the protection of certain rights and certain institutions ; never- 
theless, power is not liberty, and because it is power it requires 
limitation, or, as I have stated, it is necessary to prevent the 
generation of dangerous power. Of all power, however, popu- 
lar power, if by this term we designate the uninstitutional 
sway of the multitude, is at once the most direct, because not 
borrowed nor theoretical, and the most deceptive, because in 
reality it is necessarily led or handled by a few or by one. 
The ancients knew this perfectly well, and repeatedly treated 
of the fact; but it is not essential that the agora, the bodily 
assembled multitude, have unlimited and uninstitutional power. 
The same defects exist and the same results are produced 
where, so to speak, the market extends over a whole country, 
and where all liberty is believed to consist in one solitary 
formula — universal suffrage. Many effects of the latter are, 
indeed, more serious. 1 

No evolution of public opinion, no debate, no gradual for- 
mation, takes place. Some few prepare the measures, and Yes 
or No is all that can be asked or voted. 

Whenever we speak of the power of the people, in an un- 
organized state, we cannot mean anything else but the power 
of the majority ; and where liberty is believed to consist in the 



x Nowhere, I believe, can the views of a large class of Frenchmen on this 
subject be found more distinctly enounced than in the different works of Mr. 
Louis Blanc. They are many, and, in my opinion, as may be supposed, often 
very visionary ; but Mr. Blanc is the spirited representative of that French school 
which believes that liberty is power, that the ouvriers are the people, that wealth 
consists in the largest possible amount of currency, and money is a deception, 
and that communism is the most perfect political phase of humanity. 



368 ON CIVIL LIBERTY 

unlimited power of the people, the inevitable practical result 
is neither more nor less than the absolutism of the majority 
and the total want of protection of the minority. 

As, however, this uninstitutional multitude has no organism, 
it is, as I have stated, necessarily led by a few or one, and thus 
we meet in history with the invariable result, that virtually 
one man rules where absolute power of the people is believed 
to exist. After a short interval, that one person openly as- 
sumes all power, sometimes observing certain forms by which 
the power of the people is believed to be transferred to him. 
The people have already been familiar with the idea of abso- 
lutism — they have been accustomed to believe that, wherever 
the public power resides, it is absolute' and complete, so that it 
does not appear strange to them that the new monarch should 
possess the unlimited power which actually resided in the 
people or was considered to have belonged to them. There 
is but one step from the " peuple tout-puissant" if indeed it 
amounts to a step, to an emperor tout-puissant. 1 

It is a notable fact, which, so far as I know history, has no 
important exception, that in all times of civil commotion in 
which two vast parties are arrayed against each other, the 
anti-institutional masses, which are erroneously yet generally 
called the people, are monarchical, or in favor of trusting 
power into the hands of one man. All dictators have become 
such by popular power, if the commotion tended to a general 



1 This, it will be observed, is very different from the English maxim, the par- 
liament is omnipotent. Unguarded and extravagant as it is, it only means that 
parliament has the supreme power. But parliament itself is a vast institution, 
and part and parcel of a still vaster institutional system, which is pervaded by the 
principle of self-government. Parliament has often found that it is not omnipo- 
tent when it has attempted to break a lance with the common law. It is as 
unguarded a maxim as that the king can do no wrong, which is true only in a 
limiting sense, namely, that because he can do no wrong, some one else must be 
answerable for every act of his. Besides, there is the marginal note of James 
II. appended to this maxim, which never has been understood to mean what the 
ancient French maxim meant: In the presence of the king, the laws are silent; 
or what was meant by the famous "bed of justice," namely, that the personal 
presence of the monarch silenced all opposition, and was sufficient to ordain 
anything he pleased. 



AND SELF-GOVERNMENT. 369 

change of government. It was the case in Rome when Caesar 
ruled. The party in the Netherlands which clamored for the 
return of the Stadtholder against that great citizen De Witt, 
and was bent on giving the largest extent of hereditary power 
to the house of Orange, was the popular party. Cromwell was 
mainly supported by the anti-institutional army and its ad- 
herents. We may go farther. The rise of the modern prin- 
cipate, that is, the vast increase of the power of the prince 
and the breaking down of the baronial power, was everywhere 
effected by the help of the people. We have not here to in- 
quire, whether in many of these struggles the people did not 
consciously or instinctively support the prince or leader 
against his opponents, because the ancient institutions had 
become oppressive. At present, it is the fact alone which we 
have to consider. 

Probably it was this fact, together with some other reasons, 
which caused Mr. Proudhon, the socialist, to utter the remark- 
able sentence that " no one is less democratic than the people." 

The fact is certain that, merely because supreme power has 
been given by the people, or is pretended to have been con- 
ferred by the people, liberty is far from being insured. On 
the contrary, inasmuch as this theory rests on the theory of 
popular absolutism, it is invariably hostile to liberty, and, gen- 
erally, forms the foundation of the most stringent and odious 
despotism. To use the words of Burke: " Law and arbitrary 
power are in eternal enmity. . . . It is a contradiction in 
terms, it is blasphemy in religion, it is wickedness in politics, to 
say that any man can have arbitrary power. . . We may bite 
our chains if we will ; but we shall be made to know ourselves 
and be taught that man is born to be governed by law ; and he 
that will substitute will in the place of it is an enemy to God." x 

I add the words of one still greater, the elder Pitt, and be it 
remembered that he uttered them when he was an old man. 

" Power," said he, "without right is the most detestable 
object that can be offered to the human imagination ; it is not 



1 Mr. Burke, in 1; 
24 



3/o 



ON CIVIL LIBERTY 



only pernicious to those whom it subjects, but works its own 
destruction. Res detestabilis et caduca. Under the pretence 
of declaring law, the commons have made a law, a law for 
their own case, and have united in the same persons the offices 
of legislator, and party, and judge." 1 Frederic the Great of 
Prussia perceived this clearly, for he said "he could very 
well understand how one man might feel a desire to make his 
will the law of others, but why thirty thousand or thirty 
millions should submit to it he could not understand." This 
is the saying of a monarch who probably knew or suspected as 
little of an institutional self-government as any one, and who 
continually complained of the power of parliament in chang- 
ing ministers, when England was his ally. 2 But was he sin- 
cere when he wrote those words ? Was he still in his period 
of philosophic sentiment ? Did he really not see why this 
apparent transfer of power so often happens, or did he utter 
them merely as something piquant ? 

By whatever process this vast popular power is transferred 
or pretended to be transferred — for we must needs always add 
this qualification — is of no manner of importance with refer- 
ence to liberty. Immolation brings death, though it should 
be self-immolation ; and of the two species of political slavery, 
that is probably the worst which boasts of having originated 
from free self-submission, such as Hobbes believed to have 
been the origin of all monarchy, and of which recent history 
has furnished an apparent frightful instance. 



1 He spoke of Wilkes's expulsion. 

2 Raumer gives the dispatches from Mitchell, the English minister near the 
court of Frederic. The minister reports many complaints of the king, of this 
sort. But Frederic is not the only one who thus complained. General Walsh, 
that native Frenchman, who became minister of Spain, did the same. See 
Coxe's Memoirs, mentioned before. So when Russian statesmen desire to show 
the superiority of their government, they never fail to dwell on the low position of 
an English minister, inasmuch as he depends upon a parliamentary majority, or, 
as an English minister expressed it, must be the minister of public opinion. See 
Mr. Urquhart's Collection. I believe it will always be found that, where abso- 
lute governments come in contact with those of freemen the former complain 
of the instability of the latter. They consider a change of ministry a revolution. 



AND SELF-GOVERNMENT. 3; I 

Nothing is easier than to show to an American or English 
reader that the origin of power has of itself no necessary con- 
nection with liberty. What American would believe that a 
particle of liberty were left him, if his country were denuded 
of every institution, federal or in the states, except of the presi- 
dent of the whole, though he alone were left to be elected 
1 every four years by the sweeping majority of the entire coun- 
try, from New York to San Francisco ? Or what English- 
man would continue to boast of self-government, if a civil 
hurricane were to sweep from his country every institution, 
common law and all, except parliament, as an "omnipotent" 
body indeed ? 

The opposite of what we have called institutional self-gov- 
ernment is that liberty which Rousseau conceived of, when, 
in his Social Contract, he not only assigns all power to the 
majority, and almost teaches what might be called a divine 
right ©f the majority, but declares himself against all division. 
He shows a bitter animosity to the representative system. 
He seeks, unconsciously to himself, for a legitimate source of 
public force, when he thinks he lays a foundation for liberty. 
In this he may be said to be original, at least in the idea of the 
permanent action of the social contract, or of the sovereignty 
not only residing in the people, but continuing to act directly 
and without checking institutions. For the rest, he only car- 
ried out the old French idea of unity of power, of centraliza- 
tion, which appeared to the French, long before him, the 
summumbonum — not only in politics, but in all other spheres. 
The works of the great Bossuet show this pervading idea, in 
the sphere of theology ; and numerous proofs have been given 
in the course of this work, that the principle of uncompro- 
mising unity was distinctly acknowledged and almost idolized 
by nearly all the leading statesmen of France from Richelieu, 
through the first revolution, and continues to be so down to 
the present day. 1 No one can understand the history of 



1 One of the past statesmen of France, and renowned as a publicist, said to 
me, in 185 1, when we discoursed on the remarkable extinction of former French 



372 ON CIVIL LIBERTY 

France who does not remember the ardor for uninstitutional 
unity of power, and what is intimately connected with it, the 
idea that this all-pervading and uncompromising power must 
do and provide for everything — the extinction of self-reliance. 
The socialists do not differ from the imperialists ; on the con- 
trary, society is with them a unit in which the individual is 
lost sight of, even in marriage and property. 

Rousseau insists upon an inarticulated, unorganized, unin- 
stitutional majority. It is a view which is shared by many 
millions of people on the European continent, and has deeply 
affected all the late and unsuccessful attempts at conquering 
liberty. Rousseau wrote in a captivating style, and almost 
always plausibly, very rarely profoundly, often with impas- 
sioned fervor. Plausibility, however, generally indicates a 
fallacy, in all the higher spheres of thought and action ; still 
it is that which is popular with those who have had no ex- 
perience to guide them ; and since the theory of Rousseau has 
had so decided an influence in France, and since no one can 
understand the recent history of our race without having 
studied the Social Contract, 1 that theory, for the sake of 
brevity, may be called Rousseauism. 



royalty : " There is but one thing to which all Frenchmen cling with enthusiasm, 
almost with fanaticism, and that is absolute unity." Those statesmen who have 
not unconditionally joined this sentiment, such as Mr. Guizot, are considered 
unnational. 

1 The Contrat Social was the bible of the most advanced convention men. 
Robespierre read it daily, and the influence of that book can be traced through- 
out the revolution. Its ideas, its simplicity, and its sentimentality had all their 
effects. Indeed, we may say that two books had a peculiar influence in the French 
revolution, Rousseau's Social Contract and Plutarch's Lives, however signally 
they differ in character. The translation of Plutarch by Amyot in the sixteenth 
century — it was the period of Les Cents Contre Un — and subsequent ones, had 
a great effect upon the ideas of a certain class of reflecting Frenchmen. We 
can trace this down to the revolution, and during this struggle we find with a 
number of the leading men a turn of ideas, a conception of republicanism formed 
upon their view of antiquity, and a stoicism, which may be fitly called Plutarchism. 
It is an element in that great event. It showed itself especially with the Bris- 
sotists, the Girondists, and noble Charlotte Corday was imbued with it. A very 
instructive paper might be written on the influence of Plutarch on the political 
sentiment of the French ever since that first translation. 



AND SELF-GOVERNMENT. 



373 



We return once more to that despotism which is founded 
upon pre-existing popular absolutism. The processes by 
which the transition is effected are various. The appointment 
may deceptively remain in the hands of the majority, as was 
the case when the president of the French republic was appar- 
ently elected for ten years, after the second of December ; or 
the praetorians may appoint the Caesar; or there may be 
apparent or real acclamation for real or pretended services ; or 
the emperor may be appointed by auction, as in the case of 
the emperor Didius; or the process may be a mixed one. 
The process is of no importance ; the facts are simply these — 
the power thus acquired is despotic, and hostile to self-govern- 
ment; the power is claimed on the ground of absolute popular 
power ; and it becomes the more uncompromising because it is 
claimed on the ground of popular power. 



374 0N CIVIL LIBERTY 



CHAPTER XXXII. 



IMPERATORIAL SOVEREIGNTY. 



The Caesars of the first centuries claimed their power as 
bestowed upon them by the people, and went even so far as 
to assume the praetorians, with an accommodating and intimi- 
dated senate, as the representatives, for the time, of the people. 
The Caesars never rested their power upon divine right, nor 
did they boldly adopt the Asiatic principle in all its nakedness, 
that power — the sword, the bow-string, the mere possession 
of power — is the only foundation of the right to wield it. 
The majestas populi had been transferred to the emperor. 1 
Such was their theory. Julius, the first of the Caesars, made 
himself sole ruler by the popular element, against the insti- 
tutions of the country. 

If it be observed here that these institutions had become 
effete, that the Roman city-government was impracticable for 
an extensive empire, and that the civil wars had proved how 
incompatible the institutions of Rome had become with the 
actual state of the people, it will be allowed — not to consider 
the common fact that governments or leaders first do every- 



1 The idea of the populus vanished only at a late period from the Roman 
mind; that of liberty had passed away long before. Fronto, in a letter to Marcus 
Aurelius, (when the prince was Csesar,) mentions the applause which he had 
received from the audience for some oration which he had delivered, and then 
continues thus: " Quorsum hoc retuli? uti te, Domine, ita compares, ubi quid in 
ccetu hominum recitabis, ut scias auribus serviendum: plane non ubique et omni 
modo, attamen nonnunquam et aliquando. Quod ubi facies, simile facere te repu- 
tato, atque illud facitis, ubi eos qui bestias strenue interfecerint, populo postulante 
ornatis aut manumittitis, nocentes etiavi homines aut scelere da?nnatos, sed populo 
postulante conceditis. Ubique igitur populus dominatur et prcepollet. Igitur ut 
populo gratum erit, ita facies atque ita dices." — Epist. ad Marc. Cass., lib. i. 
epist. I. 



AND SELF-GOVERNMENT. 375 

thing to corrupt the people or plunge them into civil wars, 
and then, "taking advantage of their own wrong," use the 
corruption and bloodshed as a proof of the necessity to upset 
the government 1 — it will be allowed, I say, that at any rate 
Caesar did not establish liberty, or claim to be the leader of a 
free state, and that he made his appearance at the close of a 
long period of freedom, marking the beginning of the most 
fearful decadence which stands on record; and that, unfortu- 
nately, the rulers vested with this imperatorial sovereignty 2 
never prepare a better state of things with reference to civil 
dignity and healthful self-government. They may establish 
peace and police; they may silence civil war, but they also 
destroy those germs from which liberty might sprout forth 
at a future period. However long Napoleon I. might have 
reigned, his whole path must have led him farther astray from 
that of an Alfred, who allowed self-government to take root, 
and respected it where he found it. We can never arrive at 
the top of a steeple by descending deeper into a pit. 



1 Not unlike the conduct of the powers surrounding Poland, before they had 
sufficiently prepared her partition. The government of Poland was certainly a 
very defective one, but it was the climax of historical iniquity in Russia, Austria, 
and Prussia to declare, after having used every sinister means to embroil the 
Polish affairs and stir up faction, that the Poles were unfit to be a nation, and 
as neighbors too troublesome. 

2 The idea which I have to express would have prompted me, and the Latin 
word Cgesareus would have authorized me, to use the term Csesarean Sovereignty. 
It is unquestionably preferable to imperatorial sovereignty, except that the Eng- 
lish term Csesarean has acquired a peculiar and distinct meaning, which might 
even have suggested the idea of a mordant pun. I have, therefore, given up 
this term, although I had always used it in my lectures. It will be observed that 
I use the term sovereignty in this case, with a meaning which corresponds to the 
sense in which the word sovereign continues to be used by many, designating a 
crowned ruler. I hope no reader will consider me so ignorant of history and 
political philosophy, as to think me capable of believing in the real sovereignty 
of an individual. If sovereignty means the self-sufficient primordial power of 
society, from which all other powers are derived — and unless it mean this we do 
not stand in need of the term — it is clear that no individual ever possessed or 
can possess it. On the other hand, it is not to be confounded with absolute 
power. My views on this important subject have been given at length in my 
Political Ethics, as I have said before. 



3 ;6 ON CIVIL LIBERTY 

Whatever Caesar's greatness may have been, he did not, at 
any rate, usher in a new and prosperous era, either of liberty 
or popular grandeur. What is the Roman empire after Caesar ? 
Count the good rulers, and weigh them against the unutterable 
wretchedness resulting from the worst of all combinations — 
of lust of power, voluptuousness, avarice, and cruelty — and 
forming a stream of increasing demoralization, which gradually 
swept down in its course everything noble that had remained 
of better times. 

The Roman empire did, undoubtedly, much good, by spread- 
ing institutions which adhered to it in spite of itself, as seeds 
adhere to birds and are carried to great distances ; but it did 
this in spite, and not in consequence, of the imperatorial 
sovereignty. 

How, in view of all these facts of Roman history and of 
Napoleon I., the French have been able once more boastfully 
to return to the forms and principles of imperatorial sov- 
ereignty, and once more to confound an apparently voluntary 
divestment of all freedom with liberty, is difficult to be un- 
derstood by any one who is accustomed to self-government. 
Whatever allowance we may make on the ground of vanity, 
both because it may please the ignorant to be called upon to 
vote yes or no regarding an imperial crown, and because it 
may please them more to have an imperial government than 
one that has no such sounding name ; whatever may be 
ascribed to military recollections — and, unfortunately, in his- 
tory people only see prominent facts, as at a distance we see 
only the steeples of a town, and not the dark lanes and crowd- 
ing misery which may be around them ; whatever allowance 
may be made, and however well- we may know that the whole 
could never have been effected without a wide-spread central- 
ized government and an enormous army 1 — it still remains 
surprising to us that the French, or at least those who now 
govern, please themselves in the imperatorial forms of Rome, 
and in presenting popular absolutism as a desirable phase of 



1 See paper on Elections, in the Appendix. 



AND SELF-GOVERNMENT. 



377 



democracy. As though Tacitus had written- like a contented 
man, and not with despair in his breast, breathed into many 
lines of his melancholy annals ! 

Yet so it is. Mr. Troplong, now president of the senate, 
said on a solemn occasion, after the sanguinary second of 
December, when he was descanting on the services rendered 
by Louis Napoleon : " The Roman democracy conquered in 
Caesar and in Augustus the era of its tardy avenement!' x If 
imperatorial sovereignty were to be the lasting destiny of 
France, and not a phase, French history would consist of a 
long royal absolutism ; a short struggle for liberty, with the 
long fag-end of Roman history — the avenement of democracy 
in its own destroyer, the imperatorial sovereignty, but without 
the long period of Roman republicanism. 

The same gentleman drew up the report of the senatorial 
committee to which had been referred the subject, whether the 
people should be called upon to vote Yes or No on the ques- 



1 A sepulchral inscription in honor of Masaniello had an allusion conceived 
in a similar spirit. I give it entire, as it probably will be interesting to many 
readers. 

Eulogium 

7 kom<z Aniello de Amalfio 

Cetario mox Cesareo 

Honor e conspicuo 

qui 

Oppressa patria Parthenope 

cum 

Suppression* nobilium 

Combustione mobilium 

Purgatione exulum 

Extinctione vectigalium 

Proregis injustiiia 

Liber at a 

Ab his quos liberavit est peringrate occisus 

jEtatis sues anno vigesimo seitimo, imperii vero 

Dec emtio 

Mortuus non minus quam vivus 

Triumphavit 

Tantce rei populus Neapolitanus tanquam immemor 

Posuit. 



3;8 ON CIVIL LIBERTY 

tion : Shall the republic be changed into an empire ? This 
extraordinary report possesses historical importance, because 
it is a document containing the opinion of such a body as the 
French senate, and the political creed of the ruling party. I 
shall give it, therefore, a place in the Appendix. It contains 
the same views mentioned above, but spread over a consid- 
erable space, occasionally with surprising untenableness and 
inconsistency. 

So little, indeed, has imperatorial sovereignty to do with 
liberty, that we find even the earliest Asiatics ascribing the 
origin of their despotic power to unanimous election. I do 
not allude only to the case of Deioces, related by Herodotus, 
but to the mythological books of Asiatic nations. The fol- 
lowing extract from the Mongolian cosmogony, whose mythos 
extends over a vast part of the East, is so curious and so 
striking an instance of " the avenement of democracy" — though 
not a tardy one — and so clear a conception of imperatorial 
sovereignty without a suspicion of liberty, as a matter of 
course, since the whole refers to Asia, that the reader will not 
be dissatisfied with the extract. 

"At this time (that is, after evil had made its appearance 
on earth) a living being appeared, of great beauty and excel- 
lent aspect, and of a candid and honest soul and clear intellect. 
This being confirmed the righteous possessors in their prop- 
erty, and obliged the unrighteous possessors to give up what 
they had unjustly acquired. Thereupon the fields were dis- 
tributed according to equal measure, and to every one was 
done even justice. Then all elected him for their chief, and 
yielded allegiance to him with these words : We elect thee 
for our chief, and we will never trespass thy ordinances. On 
account of this unanimous election, he is called in the Indian 
language Ma-ha-Ssamati-Radsha ; in Thibetian, Mangboi-b 
Kurbai-r Gjabbo ; and in Mongolian, Olana-ergukdeksen Cha- 
gran (the many-elected Monarch.)" 1 

1 The History of the East Mongols, by Ssanang Ssetsen Changsaidshi, trans- 
lated into German by I. J. Schmidt. I owe this interesting passage to my friend 
the Rev. Professor J. W. Miles, who directed my attention to the work. 



AND SELF-GOVERNMENT. 379 

" In the name of the people-," are the words with which 
commenced the first decree of Louis Napoleon, issued after 
the second of December, when he had made himself master of 
France, and in which he called upon all the French to state 
whether he should have unlimited power for ten years. If it 
was not their will, the decree said, there was no necessity of 
violence, for in that case he would resign his power. This 
was naive. But theories or words proclaimed before the full 
assumption of imperatorial sovereignty are of as little impor- 
tance as after it. Where liberty is not a fact and a daily 
recurring reality, it is not liberty. The word Libertas occurs 
frequently on the coins of Nero, and still more often the sen- 
timental words, Fides Mutua, Liberalitas Augusta, Felicitas 
Publica. 

Why, it may still be asked, did the Csesars recur to the 
people as the source of their power, and why did the civilians 
say that the emperor was legislator, and power-holder, inas- 
much as the majestas of the Roman people, who had been 
legislators and power-holders, had been conferred upon him ? 
Because, partly, the first Csesars, at any rate the very first, had 
actually ascended the steps of power with the assistance of 
some popular element, cheered on somewhat like a diademed 
tribune ; because there was and still is no other actual source 
of power imaginable than the people, whether they positively 
give it, or merely acquiesce 1 in the imperatorial power, and 
because, as to the historical fact by which power in any given 
case is acquired, we must never forget that the ethical element 
and that of intellectual consistency are so inbred in man that, 
wherever humanity is developed, a constant desire is observ- 
able to make actions, however immoral or inconsistent, at 
least theoretically agree with them. No proclamation of war 
has ever avowed, I believe, that war was simply undertaken 
because he who issued the proclamation had the power and 



1 As the words stand above, I own, they may be variously interpreted ; but it 
would evidently lead me too far, were I to attempt a full statement of the sense 
in which I take them, which indeed I have done at length in my Political 
Ethics. 



380 ON CIVIL LIBERTY 

meant to use it fas aut nefas. 1 Even Attila called himself the 
scourge of God. 

No matter what the violence of facts has been, however 
rudely the shocks of events have succeeded one another, the 
first thing that men do after these events have taken place is 
invariably to bring them into some theoretical consistency, 
and to attempt to give some reasonable account of them. 
This is the intellectual demand ever active in man. The other, 
equally active, is the ethical demand. No man, though he com- 
manded innumerable legions, could stand up before a people 
and say: "I owe my crown to the murder of my mother, to 
the madness of the people, or to slavish place-men." To 
appear merely respectable in an intellectual and ethical point 
of view, requires some theoretical decorum. The purer the 
generally acknowledged code of morality or the prevailing 
religion is, or the higher the general mental system which 
prevails at the time, the more assiduous are also those who 
lead the public events, to establish, however hypocritically, 
this apparent agreement between their acts and theory, as well 
as morals. It is a tribute, though impure, paid to truth and 
morality. 



1 The reader sufficiently acquainted with history will remember that the consul 
Manlius, when the Galatians, a people in Asia Minor, urged that they had given 
no offence to the Romans, answered that they were a profligate people deserving 
punishment, and that some of their ancestors had, centuries before, plundered 
the temple of Delphi. Justin, the historian, says that the Romans assisted the 
Acarnanians against the ^Etolians because the former had joined in the Trojan 
war, a thousand years before. But this principle does not act, even to a degree 
of caricature, in politics only. What cruelties have not been committed Pro 
majore Dei gloria ! 



AND SELF-GOVERNMENT. 381 



CHAPTER XXXIIL 

IMPERATORIAL SOVEREIGNTY, CONTINUED. ITS ORIGIN AND 

CHARACTER EXAMINED. 

It has been said in the preceding pages that imperatorial 
sovereignty must be always the most stringent absolutism, 1 
especially when it rests theoretically on election by the whole 
people, and that the transition from an uninstitutional popular 
absolutism to the imperatorial sovereignty is easy and natural. 
At the time of the so-called French republic of 1848, it was 
a common way of expressing the idea then prevailing, to call 
the people le peuple-roi (the king-people,) and an advocate, 
defending certain persons before the high court of justiciary 
sitting at Versailles in 1849, f° r having invaded the chamber 
of representatives, and consequently having violated the con- 
stitution, used this remarkable expression : "the people" (con- 
founding of course a set of people, a gathering of a part of the 
inhabitants of a single city, with the people) " never violate 
the constitution/' 2 

Where such ideas prevail, the question is not about a change 
of ideas, but simply about the lodgment of power. The minds 
and souls are already thoroughly familiarized with the idea of 
absolutism, and destitute of the idea of self-government. This 
is also one of the reasons why there is so much similarity be- 
tween monarchical absolutism, such for instance as we see in 



1 That absolutism and imperatorial sovereignty go hand in hand, was neatly 
acknowledged by an inscription over the sub-prefecture of Dunkerque, when the 
imperial couple passed it, in 1855. It was to this effect: A 1'heritier de Napo- 
leon, la ville de Louis XIV. 

2 Mr. Michel, on the 10th of November. I quote from the French papers, 
which gave detailed reports. Mr. Michel, to judge from his own speech, seems 
to have been the oldest of the defending advocates. 



382 ON CIVIL LIBERTY 

Russia, and communism, as it was preached in France; and it 
explains why absolutism, having made rapid strides under the 
Bourbons before the first revolution, has terminated every suc- 
cessive revolution with a still more compressive absolutism 
and centralism, except indeed the revolution of 1830. This 
revolution was undertaken to defend parliamentary govern- 
ment, and may be justly called a counter-revolution on the 
part of the people against a revolution attempted and partially 
carried by the government. It explains farther how Louis 
Napoleon after the second of December, and later when he 
desired to place the crown of uncompromising absolutism on 
his head, could appeal to the universal suffrage of all France 
— he that had previously curtailed it, with the assistance of 
the chamber of representatives. This phenomenon, however, 
must be explained also by the system of centralism, which 
prevails in France. I shall offer a few remarks on this topic 
after having treated of some more details appertaining to the 
subject immediately in hand. 

The idea of the peuple-roi (it would perhaps have been more 
correct to say peuple-czar) also tends to explain the other- 
wise inconceivable hatred against the bourgeoisie, by which the 
French understand the aggregate of those citizens who inhabit 
towns and live upon a small amount of property or by traffic. 
The communists and the French so-called democrats enter- 
tained a real hatred against the bourgeoisie ; the proclama- 
tions, occasionally issued by them, openly avowed it; and the 
government, when it desired to establish unconditional abso- 
lutism in form as well as principle, fanned this hatred. Yet 
no nation can exist without this essential element of society. 
In reading the details of French history of the year 1848 and 
the next succeeding years, the idea is forced upon our mind 
that a vast multitude of the French were bent on establish- 
ing a real and unconditional aristocracy of the ouvrier — the 
workman. 1 



1 This error broke forth into full blaze at the indicated time, but it had of 
course been long smouldering, and, as is customary, had found some fuel even 



AND SELF-GOVERNMENT. 383 

If the imperatorial sovereignty is founded upon an actual 
process of election, whether this consist in a mere form or not, 
it bears down all opposition, nay all dissent, however lawful it 
may be, by a reference to the source of its power. It says : 
"I am the people, and whoever dissents from me is an enemy 
to the people. Vox Populi vox Dei. My divine right is the 
voice of God, which spake in the voice of the people. The 
government is the true representative of the people." 1 



in our country. In the year 1841, during the presidential canvass, a gentleman 
— who has since become the editor of a Catholic periodical, and has probably 
changed his views — published a pamphlet in which he attacked individual prop- 
erty, and fell into the same error which is spoken of in the text above. 

The author of the pamphlet, which was very widely distributed, found it of 
course impossible to draw the line between the workmen and those who are not 
"working," and I recollect that he did not even allow the superintendent of a 
factory to be a workman. I have treated of these subjects in detail in my Essays 
on Labor and Property, and believe that a Humboldt is a harder " working man," 
not indeed than the poor weaver who allows himself but five hours' rest in the 
whole twenty-four, but certainly a far harder working man than any of those 
physically employed persons who want to make their class a privileged order. 
The fact is simply this, that there is no toiling man, however laboriously em- 
ployed in a physical way, that does not guide his efforts by an exertion of the 
brain, and no mentally employed man that is not obliged to accompany his labor 
by some, frequently by much, physical exertion. To draw an exact line between 
the two, for political purposes, is impossible. All attempts at doing so are mis- 
chievous. The hands and the brain rule the world. All labor is manual and 
cerebral, but the proportion in which the elements combine is infinite. So soon 
as no cerebral labor is necessary, we substitute the animal or the machine. In 
reading some socialist works, one would almost suppose that men had returned 
to some worship of the animal element, raising pure physical exertion above all 
other human endeavors. Humanity does not present itself more respectably than 
in the industrious and intelligent artisan, but every artisan justly strives to reach 
that position in which he works more by the intellect than by physical exertion. 
He strives to be an employer. The type of a self-dependent and striving Ameri- 
can artisan is a really noble type. The author hopes to count many an American 
operative among his readers; and, if he be not deceived, he takes this opportunity 
of declaring that he believes he too has a very fair title to be called a hard- 
working man, without claiming any peculiar civil privileges on that account. 

1 The idea that God speaks through the voice of the people, familiar to the 
middle ages, is connected with the elections of ruder times by general acclaim. 
It reminds us also of the Dien le vent, at Clermont, when Peter the Hermit called 
on the chivalry and the people to take the sign of the cross. And again it reminds 
us of the disastrous decrets d* acclamation of the first French revolution. That 



384 ON CIVIL LIBERTY 

The eight millions of votes, more or less, which elevated the 
present French emperor, first to the decennial presidency and 
then to the imperial throne, are a ready answer to all objec- 
tions. If private property is confiscated by a decree ; if per- 
sons are deported without trial ; if the jury trial is shorn of 
its guarantees, the answer is always the same. The emperor 
is the unlimited central force of the French democracy ; thus 
the theory goes. He is the incarnation of the popular power, 
and if any of the political bodies into which the imperatorial 
power may have subdivided itself, like a Hindoo god, should 
happen to indicate an opinion of its own, it is readily given to 
understand that the government is in fact the people. Such 
bodies cannot, of course, be called institutions ; for they are 
devoid of independence and every element of self-government. 
The president of the French legislative corps in 1853, found 
it necessary, on the opening of the session, to assure his col- 
leagues, in an official address, that their body was by no means 
without some importance in the political system, as many 
seemed to suppose. 

The source of imperatorial power, however, is hardly ever 
what it is pretended to be, because, if the people have any 
power left, it is not likely that they will absolutely denude 
themselves of it, surely not in any modern and advanced 
nation. The question in these cases is not whether they love 
liberty, but simply whether they love power — and every one 
loves power. On the one hand, we have to observe that no 
case exists in history in which the question, whether impera- 
torial power shall be conferred upon an individual, is put to 
the people, except after a successful conspiracy against the 
existing powers or institutions, or a coup d'etat, if the term 
be preferred, on the part of the imperatorial candidate ; and, 
on the other hand, a state of things in which so great a ques- 
tion is actually left to the people is wholly unimaginable. 



the government is the true representative of the people has been often asserted in 
recent times in France, and Napoleon I., in one of his addresses, delivered in 
the council of state, said : The government, too, is the representative of the 
people. — Miot de Melito, in his Memoirs. 



AND SELF-GOVERNMENT. 385 

There may be a so-called interregnum during the conclave, 
when the cardinals elect a pope, but a country cannot be 
imagined in a state of perfect interregnum while the question 
is deciding whether a hereditary empire shall be established. 
It is idle to feign believing that this is possible, most especially 
so where the question is to be decided not by representatives, 
but by universal suffrage, and that, too, in a country where 
the executive power spreads over every inch of the territory 
and is characterized by the most consistent centralism. The 
two last elections of Louis Napoleon prove what is here stated. 
Ministers, prefects, bishops, were openly and officially influ- 
encing the elections ; not to speak of the fact that large 
elections concerning persons in power, which allow to vote 
only yes or no, have really little meaning, as the history of 
France abundantly proves. 1 But how elections at present 
are managed in France, even when the question is not so 
comprehensive, may be seen from a circular addressed by the 
minister, Mr. de Morny, 2 to the prefects, previous to the elec- 
tions for the first legislative corps. It is an official paper, 
strikingly characteristic, and I shall give a place to a transla- 
tion of it in the Appendix. We ought to bear in mind that 
one of the heaviest charges against Mr. de Polignac, when 
tried for treason, was that he had allowed Charles X. to in- 
fluence the elections. 

When such a vote is put to the people under circumstances 
which have been indicated, the first question which presents 
itself is : And what if the vote turn out No ? Will the can- 
didate, already at the head of the army, the executive, and of 
every other branch ; whose initials are paraded everywhere, 
and whose portrait is in the courts of justice, some of which 



1 See the Paper on Elections, in the Appendix. 

2 Mr. de Morny is the frere adultirin of Louis Napoleon, on the mother's side, 
Queen Hortense. He aided his half-brother very actively in the overthrow of 
the republic, and the establishment of the empire. Mr. de Morny lost the min- 
istry at the time when L. Bonaparte despoiled the Orleans family of their lawful 
property, and, it was believed, because the minister could not in his conscience 
sanction an act at once so unlawful and ungrateful. 

25 



386 ON CIVIL LIBERTY 

actually have styled themselves imperial, and who has been 
addressed Sire ; who has an enormous civil list — will he make 
a polite bow, give the keys to some one else, and walk his 
way ? And to whom was he to give the government ? The 
question was not, as Mr. de Laroche-Jacquelin had proposed, 
Shall A or B rule us ? Essentially this question would not 
have been better ; but there would have been apparently some 
sense in it. The question simply was : Shall B rule us ? — Yes 
or No. It is surprising that some persons can actually believe 
reflecting people may thus be duped. 

The Caesar always exists before the imperatorial govern- 
ment is acknowledged and openly established. Whether the 
praetorians or legions actually proclaim the Caesar or not, it is 
always the army that makes him. A succeeding ballot is no- 
thing more than a trimming belonging to more polished or 
more timid periods, or it may be a tribute to that civilization 
which does not allow armies to occupy the place they hold in 
barbarous or relapsing times, at least not openly so. 

First to assume the power and then to direct the people to 
vote, whether they are satisfied with the act or not, leads 
psychologically to a process similar to that often pursued by 
Henry VIII., and according to which it became a common 
saying: First clap a man into prison for treason, and you will 
soon have abundance of testimony. It was the same in the 
witch-trials. 

The process of election becomes peculiarly unmeaning, be- 
cause the power already assumed allows no discussion. There 
is no free press. 1 

Although no reliance can be placed on wide-spread elec- 
tions whose sole object is to ratify the assumption of impera- 



1 When the question of the new imperial crown was before the people of 
France, Count Chambord, the Bourbon prince who claims the crown of France 
on the principle of legitimacy, wrote a letter to his adherents, exhorting them 
not to vote. The leading government papers stated at the time that government 
would have permitted the publication of this letter, had it not attacked the prin- 
ciple of the people's sovereignty. The people were acknowledged sovereign, 
yet the. government decides what the sovereign may read! 



AND SELF-GOVERNMENT. 387 

torial sovereignty, and when therefore it already dictatorially 
controls all affairs, it is not asserted that the dictator may not 
at times be supported by large masses, and possibly assume 
the imperatorial sovereignty with the approbation of a majority. 
I have repeatedly acknowledged it ; but it is unquestionably 
true that generally in times of commotion, and especially in 
uninstitutional countries, minorities rule, for it is minorities 
that actually contend. Yet, even where this is not the case, 
the popularity of the Caesar does in no way affect the ques- 
tion. Large, unarticulated masses are swayed by temporary 
opinions or passions, as much so as individuals, and it requires 
but a certain skill to seize upon the proper moment to receive 
their acclamation, if they are willing and consider themselves 
authorized to give away, by one sudden vote, all power and 
liberty, not only for their own lifetime, but for future gen- 
erations. In the institutional government alone, substantial 
public opinion can be generated and brought to light. 

It sometimes happens that arbitrary power or centralism 
recommends itself to popular favor by showing that it intends 
to substitute a democratic equality for oligarchic or oppressive, 
unjust institutions, and the liberal principle may seem to be 
on the side of the Revelling ruler. This was doubtless the case 
when in the sixteenth and seventeenth centuries the power of 
the crown made itself independent on the continent of Europe. 
Instead of transforming the institutions, or of substituting new 
ones, the governments levelled them to the ground, and that 
unhappy centralization was the consequence which now draws 
every attempt at liberty back into its vortex. At other times, 
monarchs or governments disguise their plans to destroy 
liberty in the garb of liberty itself. Thus, James II. endeavored 
to break through the restraints of the constitution, or perhaps 
ultimately to establish the Catholic religion in England, by 
proclaiming liberty of conscience for all, against the estab- 
lished church. Austria at one time urged measures, appar- 
ently liberal for the peasants, against the Gallician nobles. In 
such cases, governments are always sure to find numerous 
persons that do not look beyond the single measure, or to 



388 ON CIVIL LIBERTY 

the means by which it is carried out ; yet the legality and 
constitutionality of these means are of great, and frequently 
of greater importance than the measure itself. Even his- 
torians are frequently captivated by the apparently liberal 
character of a single measure, forgetting that the dykes of 
an institutional government once being broken through, the 
whole country may soon be flooded by an irresistible tide of 
arbitrary power. We have a parallel in the criminal trial, in 
which the question how we arrive at the truth is of equal im- 
portance with the object of arriving at truth. Nullum bonum 
nisi bene. 

On the other hand, all endeavors to throw more and more 
unarticulated power into the hands of the primary masses, 
to deprive a country more and more of a gradually evolv- 
ing character ; in one word, to introduce an ever-increasing, 
direct, unmodified popular power, amount to an abandonment 
of self-government, and an approach to imperatorial sover- 
eignty, whether there be actually a Caesar or not — to popu- 
lar absolutism, whether the absolutism remain for any length 
of time in the hands of a sweeping majority, subject, of 
course, to a skilful leader, as in Athens after the Peloponne- 
sian war, or whether it rapidly pass over into the hands of a 
broadly named Caesar. Imperatorial sovereignty may be at a 
certain period more plausible than the sovereignty founded 
upon divine right, but they are both equally hostile to self- 
government, and the only means to resist the inroads of power 
is, under the guidance of Providence and a liberty-wedded 
people, the same means which in so many cases have with- 
stood the inroads of the barbarians, namely, the institution — 
the self-sustaining and organic systems of laws. 



AND SELF-GOVERNMENT, 389 



CHAPTER XXXIV. 

CENTRALIZATION. INFLUENCE OF CAPITAL CITIES. 

We have seen in how great a degree French centralism has 
produced an incapacity for self-rule, according to one of the 
most distinguished statesmen of France herself. This central- 
ism, in conjunction with imperatorial sovereignty, has pro- 
duced some peculiar effects upon a nation so intelligent, 
ardent, and wedded to system as the French are. Before I 
conclude this treatise, therefore, I beg leave to offer a few 
remarks, which naturally suggest themselves, in connection 
with centralism and imperatorial sovereignty ; both so promi- 
nent at this moment in France. 

Centralism has given to Paris an importance which no capi- 
tal possesses in any other country. The French themselves 
often say Paris is France ; foreigners always say so ; and to 
them as well as to those French people who desire to enjoy, 
at one round, as much as possible of all that French civiliza- 
tion produces, this is, doubtless, very agreeable and instructive. 
Paris, is brilliant, as centralism frequently is ; Paris naturally 
flatters the vanity of the French; Paris stands with many 
people for France, because they see nothing of France but 
Paris. Centralization appears most imposing in Paris — in the 
buildings, in demonstrations, in rapidity of execution, and in 
an sesthetical point of view. Upon a close examination of 
history, however, we shall find that it has been not only a 
natural effect of centralism, but an object of all absolute rulers 
over intelligent races, to beautify the capital and raise its 
activity to the highest point. The effect is remarkable. The 
government of King Jerome, of Westphalia — now again prince 
of France — was one of the most ruinous that has ever existed, 
and yet long after the downfall of that ephemeral kingdom, 



390 



ON CIVIL LIBERTY 



ever)- disapproval of it was answered by a reference to the 
embellishment of Cassel, the capital. 1 

1 There are psychological processes which indicate suspicious intentions — the 
adoption of a new and scientifically sounding term for an old and common 
offence, as Repudiation for declining to pay what is due; and of mystifying, high- 
sounding abstractions in statesmanship. The latter is carried to a degree, in the 
following address of Napoleon, which is rare even in France. Louis XIV., ac- 
cording to the present emperor of the French, the great representative of French 
unity and glory, when he had ruined France by the building of Versailles, warned, 
on his death-bed, his successor to beware of wars and of building. There are so 
many points of French politics tersely put in the speech of Napoleon III., when 
in September of 1857 he opened the Louvre, that its record may be considered a 
historical document. We give it therefore entire. 

The ceremony of opening the Louvre was simple but imposing. The minis- 
ters, marshals and generals, the senators and great functionaries, assembled in the 
hall of the Louvre. The emperor and empress arrived at two o'clock with a 
vast retinue. The business began by the presentation of an address to the em- 
peror from M. Fould, briefly describing the origin and completion of a work 
which, begun in 1852 and finished in 1857, unites the Louvre and the Tuileries. 
The emperor next distributed the legion of honor to the professional men who 
have distinguished themselves during the erection of the building; making some 
commanders, some simple knights. Having distributed all the honors, the em- 
peror delivered the following address : 

" Gentlemen — I congratulate myself, with you, on the completion of the 
Louvre. I congratulate myself especially upon the causes which have rendered 
it possible. In fact, it is order, restored stability, and the ever-increasing pros- 
perity of the country, which have enabled me to complete this national work. I 
call it so because the governments which have succeeded each other have made 
it a point to do something towards the completion of the royal dwelling com- 
menced by Francis I. and embellished by Henry II. 

" Whence this perseverance, and even this popularity, in the building of a 
palace ? It is because the character of a people is reflected in its institutions as 
in its customs, in the events that excite its enthusiasm as well as in the monu- 
ments which become the object of its chief interest. Now France, monarchical 
for so many centuries, which always beheld in the central power the representa- 
tive of her grandeur and of her nationality, wished that the dwelling of the sov- 
ei-eign should be worthy of the country; and the best means of responding to that 
sentiment was to adorn that dwelling with the different masterpieces of human 
intelligence. 

" In the middle ages, the king dwelt in a fortress, bristling with defensive 
works; but soon the progress of civilization superseded battlements, and the 
produce of letters, of the arts and sciences, took the place of weapons of war. 
Thus the history of monuments has also its philosophy as well as the history of 
events. 

" In like manner as it is remarkable that at the time of the first revolution, the 



AND SELF-GOVERNMENT. 39 1 

Capital cities and residences of kings, and even of petty 
princes, have in this respect the same effect which single large 
fortunes or single busy places have on the minds of the super- 
ficial, in point of political economy. They are palpable, and 
strike the mind, yet they prove nothing of themselves. There 
is not a war, however ruinous, that does not produce gigantic 
gains for some bankers, contractors, and able speculators. 
They are often pointed out to prove that a certain war has not 
been fatal to general prosperity. There have never existed 
greater fortunes than those of some princely Roman senators, 
with their latifundia, in the very worst periods of the Roman 
empire, amidst universal ruin, and when the country was fast 
declining to that state in which the tillers of the soil aban- 
doned their farms, because unable to pay the taxes, and in 
which Italy, with the utmost exertion of the government, was 
not able to raise an army against invading hordes. 

Whenever we shall have executed our railway to the Pacific, 
nothing of it will be seen at one moment and by the physical 
eye, that differs from the rails of any other road, and the 
vulgar will be struck far more by a palace at Versailles, or a 



committee of public welfare should have continued, without being aware of it, 
the work of Louis XI., of Richelieu, of Louis XIV., giving the last blow to the 
feudal system, and carrying out the system of unity and centralization, the con- 
stant aim of monarchy — in like manner is there not a great lesson to learn in 
beholding the idea of Henry IV., of Louis XIII., of Louis XIV., of Louis XV., 
of Louis XVI. , of Napoleon, as regards the Louvre, adopted by the ephemeral 
power of 1848 ? One of the first acts, in fact, of the provisional government, was 
to decree the completion of the palace of our kings. So true is it that a nation 
draws from its antecedents, as an individual derives from his education, ideas 
which the passions of a moment do not succeed in destroying. When a moral 
impulse is the consequence of the social condition of a country, it is handed 
down through centuries, and through different forms of government, until the 
object in view is attained. 

" Thus the completion of the Louvre, towards which I thank you for your co- 
operation, given with so much zeal and skill, is not the caprice of a moment, but 
is the realization of a plan conceived for the glory and kept alive by the instinct 
of the country for more than three hundred years." 

In the evening some hundreds of persons engaged in the work — workingmen, 
artists, men of letters, journalists — were entertained at dinner by the minister of 
state in a gallery of the Louvre. Of course the speaking was ultra-loyal. 



3Q2 ON CIVIL LIBERTY 

column of Trajan ; unless, indeed, a pointing hand were hewn 
in granite, at San Francisco, with the words, To the Atlantic, 
and another at some Atlantic city, with the words, To the 
Pacific ; and even then the grandeur of the road would not be 
perceived by the physical eye. 1 

We live in an age which has justly been called the age of 
large cities. 2 Populous cities are indispensable to civilization, 
and even to liberty, though I own that one of the problems 
we have yet to solve is, how to unite in large cities the highest 
degree of individual liberty and order. 

But absorbing cities, cities on which monarchs are allowed 
to lavish millions of the national wealth, always belong to a 
low state of general national life, often to effete empires. The 
vast cities of Asia, Byzantium, imperial Rome, and many other 
cities prove it. On the other hand, it is an unfortunate state 
.of things in which one city rules supreme, either by an over- 
whelming population, as Naples, or by concentration, as Paris. 
Constant changes of governments seem almost inevitable, 
whether the)- are produced by the people, as in the case of 
Paris, or by foreigners, as was formerly the case in Naples. 

A comparison between Paris and London, in this respect, is 
instructive. London, far more populous, has far less influence 
than Paris ; and London, incomparably richer, is far less bril- 
liant than Paris. Monarchical absolutism and centralism 
strike the eye and strive to do so ; liberty is brilliant indeed, 
but it is brilliant in history, and must be studied in her insti- 
tutions. 3 



1 No one will charge the author, he trusts, with political iconoclasm, that has 
read his chapter on monuments in his Political Ethics. 

2 The Age of Great Cities, or Modern Society viewed in its Relation to Intelli- 
gence, Morals and Religion, by Robert Vaughn, D.D., London, 1843. 

3 This manifests itself in all spheres. Paris leads in fashion, art, science, 
language, etc. England has her Oxford and Cambridge. 

The title of Walker's Critical Pronouncing Dictionary has these words : " Like- 
wise Rules to be observed by the Natives of Scotland, Ireland and London, for 
avoiding their respective Peculiarities," as indicating part of the contents. This 
is strikingly English. The pronunciation and "peculiarities" of the Parisians, 



AND SELF-GOVERNMENT. 393 

Great as the influence of Paris has been ever since the reign 
of the Valois, it has steadily increased, and those who strove 
for liberty were by no means behind the others in their wor- 
ship of the capital. This singular idolatry was actually ac- 
knowledged by several resolutions of the representatives of 
the people, during the late republic. 

The intense influence of Paris, together with the wide-spread 
system of government, every single thread of which centres 
in Paris, is such that, in 1848, the republic was literally tele- 
graphed to the departments, and adopted without any resist- 
ance from any quarter, civil or military, which cannot be 
explained by the often-avowed horror of the French at shed- 
ding French blood, since blood was readily shed to elevate 
Louis Napoleon. The same causes made it possible for the 
republic, so readily and unanimously adopted, to be with equal 
readiness changed by eight millions of votes into a monarchy. 

It has already been admitted that centralism, by the very 
fact that it concentrates great power, can produce many strik- 
ing results which it is not in the power of governments on a 
different principle to exhibit. These effects please and often 
popularize a government ; but there is another fact to be taken 
into consideration. Symmetry is one of the elements of 
humanity ; systematizing is one of man's constant actions. It 
captivates and becomes dangerous, if other elements and 
activities equally important are neglected, or if it is carried 
into spheres in which it ought not to prevail. The regu- 
larity and consistent symmetry, together with the principle 
of unity, which pervade the whole French government, charm 
many a beholder, and afford pleasure not unlike that which 
many persons derive from looking at a plan of a mathematic- 
ally regular city, or upon gardens architectonically trimmed. 



even as they change from time to time, are the very standard of French pro- 
nunciation. 

Similar remarks may be made regarding the courts. The court of Versailles 
dictated in every sphere at the time when Horace Walpole, the whig, wrote that 
the English court was not fashionable, and was considered little better than a 
number of Germans kept there for some useful practical end. 



394 0N CIVIL LIBERTY 

But freedom is life, and wherever we find life it is marked, in- 
deed, by agreement of principles and harmony of development, 
but also by variety of form and phenomenon, and by a subor- 
dinate exactness of symmetry 7 . The centralist, it might be 
said, mistakes lineal and angular exactness, formal symmetry, 
and mathematical proportions, for harmonious evolution and 
profuse vitality. He prefers an angular garden of the times 
of Louis XIV. to an umbrageous grove. 

Centralism, and the desire to bring everything under the 
influence of government, or to effect as far as possible every- 
thing by government, has fearfully increased from the moment 
that the imperatorial absolutism was declared : J while, at the 
same time, a degree of man-worship has developed itself, which 
makes people at a distance almost stand aghast. The same 
hyperbolical, and, in many cases, blasphemous flattery, which 
reminded the observer, in the times of Napoleon L, of imperial 
Rome, has been repeated since. No one who has attentively 
followed the events of our times stands in need of instances ; 
they were offered by hundreds, 2 and of a character that would 



1 According to the latest news, even the dead are under the control of govern- 
ment, not in the sense of Sydney Smith, by paying taxes, but no one can any 
longer be buried in Paris except by a chartered company, standing under the 
close inspection of the police department. 

2 Churchmen and laymen, as is well known, vie with each other on such occa- 
sions. The blasphemous flattery offered by some dignitaries of the church to 
Napoleon I. was revolting. We have seen the same when there seemed to be a 
question who could bid highest in burning incense to the present new Caesar. 
The Lord's Prayer was travestied. The following " proclamation" is taken from 
the " Concorde de Seine et Oise," of October, 1S52, for the very reason that it 
is not one of the worst : 

" Town of Sevres. Proclamation of the Empire. 

" Inhabitants — Paris, the heart of France, acclaimed on the 10th of May for its 
emperor him whose divine mission is every day revealed in such a striking and 
dazzling manner. At this moment it is the whole of France electrified which 
salutes her savior, the elect of God, by this new title, which clothes him with 
sovereign power : « God wills it,' is repeated with one voice — ' vox populi vox 
Dei.' It is the marriage of France with the envoy of God, which is contracted 
in the face of the universe, under the auspices of all the constituted bodies, and 
of all the people. That union is sanctified by all the ministers of religion, and 



AND SELF-GOVERNMENT. 395 

make the most inveterate former tory-worship of the crowned 
person appear as an innocent blundering ; but we cannot pass 
over the fact that an infatuated yet large part of a nation have 
for the first time in history, so far as we know, called ideas 
after a man of action. " Napoleonic ideas" has become a 
favorite expression. Not only newspapers use this term — a 
late one condemned free-trade because " free-trade is no Napo- 
leonic idea" — but men whom we have been accustomed to 
look upon with respect x have fallen into this infatuation. All 
of us have heard of Christian ethics, Christian ideas and sen- 
timents, but we have never heard of Carlovingian, Frederician, 
Julian, Alexandrian, Gregorian or Lutheran ideas. It is a sub- 
mission to a name, an individual — and an individual, too, be 
it observed, who distinguished himself as a man of action, 
which seems to indicate a singular want of self-reliance and 
self-respect. 

Centralized governments can effect certain brilliant acts, 



by all the princes of the church. These addresses, these petitions, and these 
speeches, which are at this moment exchanging between the chief of the state 
and France, are the documents connected with that holy union; every one 
wishes to sign them, as at the church he would sign the marriage- deed at which 
he is present. Inhabitants of Sevres, as the interpreter of your sentiments, I 
have prepared the deed which makes you take part in this great national move- 
ment. Two books are opened at the Mairie to receive your signatures : one of 
them will be offered in your presence to him whom I from this day designate 
under the title of emperor. Let us hope that he will deign to accede to the 
supplications which I shall address to him in your name, to return to the palace 
of St. Cloud through our territory, by the gate of honor which we possess. The 
other book, which I shall present for the signature of the prince, will remain in 
your archives as a happy souvenir of this memorable epoch. Let all the popu- 
lation, without distinction, come, therefore, and sign this document; it sets forth 
that which is in your heart and in your will." 

This document is accompanied by a formal proclamation, appropriately signed 
— " Menager, mayor." 

Plain dealing, however, obliges us to remember, along with such extravagances 
of foreigners, the repulsive flattery in which some individuals indulged when 
Kossuth was among us. Nor must we wholly forget the language of certain daily 
journals at the time of General Jackson's administration. But these were erratic 
acts of individuals, and, however disgusting, were not officially received by 
government. 

1 Mr. Chevalier. 



396 on civil liberty 

but they are on this account seriously liable to fall into a 
method of carrying on public affairs which, in the language 
of stage managers, is significantly called starring, and which 
has the serious inconvenience of leading popular attention 
from solid actions to that which dazzles, from wholesome 
reality to mere brilliant ideas. 

The elevation of Napoleon III. may be referred in a measure 
to this error. Huzzaing crowds are never substantial indica- 
tions of any opinion, whether the crowds are voluntary or 
subpoenaed. " Where are my enemies ?" said Charles II. when 
he re-entered London and passed through the crowd of his 
subjects. He had enough. Prince de Ligne tells us that, 
when Catharine travelled through Crimea, distant populations 
were carried to the roadside of the imperial traveller, to wait 
on her, in costumes delivered to them by the government, and 
to personate the inhabitants of show villages which had been 
erected in the background. These sham villages are typical. 

Still, we can believe that many persons rushed to see the 
present emperor when he travelled through France, before he 
made himself emperor, because they really believed that which 
had been so often repeated — that Louis Napoleon " had saved 
society and civilization." Now, this is exactly an idea which 
belongs to the order that has been indicated. 

It is in the first place founded upon the belief that if civili- 
zation perishes in France it is necessarily lost for the entire 
world. It would certainly produce a very serious shock ; but 
the French idea of one leading nation is an anachronism. It 
belongs to ancient times ; the French easily fall into this error, 
because Paris really leads France. Civilization, however, 
would not be wholly lost even for France, should Paris be 
destroyed ; or, if it were so, what must we think of the whole 
country ? 

Secondly, those who assert that Napoleon III. saved society 
mean, it must be supposed, that had he not taken the reins of 
absolute power the socialists would have destroyed property, 
industry, and individuality. 

The fear which the socialists have inspired must have been 



AND SELF-GOVERNMENT. 



397 



very great, and doubtless the power in every individual of 
doing mischief is immense, compared to that of doing good. 
Even an insect can cause a leak to a man-of-war ; but to say 
that a single man — such a man, and by such means — has been 
the savior of society, is at once so monstrous an exaggeration, 
and such an avowal of inability to act, and want of self-reli- 
ance, that this hyperbole, if it be not altogether an error, 
would have led to no such results with any nation less accus- 
tomed to centralism, absolutism, and an absorbing govern- 
ment. These were necessary to make a nation so rapidly, 
and apparently with so much good-humor, bend to all the 
exorbitant and insulting demands of absolutism, to which, 
unfortunately, at this moment the French nation seems to bow 
with a peculiar grace. 



398 ON CIVIL LIBERTY 



CHAPTER XXXV. 



VOX POPULI VOX DEI. 



The maxim Vox Populi Vox Dei is so closely connected 
with the subjects which we have been examining, and it is so 
often quoted on grave political occasions, that it appears to 
me proper to conclude this work with an inquiry into the 
validity of this stately saying. Its poetic boldness and epi- 
grammatic finish, its Latin and lapidary formulation, and its 
apparent connection of a patriotic love of the people with 
religious fervor, give it an air of authority and almost of sacred- 
ness. Yet history, as well as our own times, shows us that 
everything depends upon the question who are " the people," 
and that even if we have fairly ascertained the legitimate sense 
of this great yet abused term, we frequently find that their 
voice is anything rather than the voice of God. 

If the term people is used for a clamoring crowd, which is 
not even a constituted part of an organic whole, we would be 
still more fatally misled by taking the clamor for the voice of 
the deity. We shall arrive, then, at this conclusion, that in no 
case can we use the maxim as a test, for, even if we call the 
people's voice the voice of God in those cases in which the 
people demand that which is right, we must first know that 
they do so before we could call it the voice of God. It is no 
guiding authority; it can sanction nothing. 

" The chief priests, and the rulers, and the people," cried 
out all at once, " Crucify him, crucify him I" 1 Were then "the 
rulers and the people" not the populus ? But their voice was 
assuredly not the vox Dei in this case. If populus means the 



1 St. Luke, xxiii. 13, 21. 



AND SELF-GOVERNMENT. $gg 

constituted people speaking through the organs and in the 
forms of law, the case of Socrates arises at once in our mind. 
It was the people of Athens, speaking by their constituted 
authorities, that bade him drink the hemlock ; yet it would be 
blasphemy to say that it was the voice of God that spoke in 
this case through the mouth of the Athenians. Was it the 
voice of the people, and, through it, the voice of God, which 
demanded the sway of the guillotine in the first French revo-* 1 
lution? Or was it the voice of God which made itself heard 
in 1848, when all punishment of death for political offences 
was abolished in France ? Or is it the voice of God which 
through " the elect one of the people" demanded the re-estab- 
lishment of capital punishment for high political offences ? 
Or is it the voice of God that used so indefinite a term in law 
as that of political offences ? 

There are, indeed, periods in history in which, centuries 
after, it would seem as if an impulse from on high had been 
given to whole masses, or to the leading minds of leading 
classes, in order to bring about some comprehensive changes. 
That remarkable age of maritime discovery which has influ- 
enced the whole succeeding history of civilization and the 
entire progress of our kind, would seem at first glance, and to 
many, even after a careful study of all its elements, to have 
received its motion and action from a breath not of human 
breathing. No person, however, living at that period would 
have been authorized to call the wide-spread love of maritime 
adventure the voice of God, merely because it was widely 
diffused. Impulsive movements of greater extent and inten- 
sity have been movements of error, passion, and crime. It 
must be observed that the thorough historian often acts in 
these cases as the natural philosopher who finds connection, 
causes and effects, where former ages thought they recog- 
nized direct and detached manifestations or interpositions of a 
superior power, and not the greater attribute of variety under 
eternal laws and unchanging principles. 

When the whole of Europe was animated by one united 
longing to conquer the Holy Land, it appeared undoubtedly to 



400 ON CIVIL LIBERTY 

the crusaders that the voice of the people was the voice of 
God. It seemed, indeed, as if an afflatus numinis breathed 
over the European lands. Those, however, who now believe 
that the crusades were a great injury to Europe — and there 
are such — do not perceive the voice of God in this vast move- 
ment. They will perhaps maintain that it was not the people 
who felt this surprising impulse, but the chivalry, who by their 
unceasing petty feuds had developed a martial restlessness 
which began to lack food, and thus engaged in distant enter- 
prises, stimulated by the highly sacerdotal character which 
pervaded that age. To find out, then, whether it was the vox 
populi, would first require to find out whether it was the vox 
Dei, and, consequently, we are no better off with the maxim 
than without it. 1 

I am under the impression that the famous maxim first came 
into use in the middle ages, at a contested episcopal election, 2 



1 Sir Wm. Hamilton begins the third paragraph, page 770, of The Works of 
Thomas Reid on the Universality of the Philosophy of Common Sense, in this 
way : 

" 1. — Hesiod thus terminates his Works and Days: 

$77/^77 d'olng 7ra/mav aiz&CkvraL tjv Tiva-7TO?Jiol 
Aaol (j)7]fit^ovac. Gedc vv nc eon ml avrr}. 

" The Word proclaimed by the concordant voice 
Of mankind fails not; for in Man speaks God." 

" Hence the adage ? — Vox Populi, vox Dei." 

It is well the learned sage added the query, for, historically at least, the V. P. 
"V. D. certainly does not come from Hesiod. 

2 For many years I was under the impression that I had found this fact when 
studying the times of Abelard ; but I must confess that all my attempts to recover 
it, when I came to write on this subject, have been fruitless. Sanderson, whom 
Mr. Hallam calls the most distinguished English casuist, treats of the maxim in 
his work De Conscientia. I copy from the London Notes and Queries, Nov. 19, 
1853, the following passage, which was elicited by the preceding portion of this 
note : 

" The earliest known instances of the use of the saying are, by William of 
Malmesbury, who, speaking of Odo yielding his consent to be Archbishop of 
Canterbury, A.D. 920, says, Recogitans illud Proverbium, < Vox Poptdi, vox Dei /' 
and by Walter Reynolds, Archbishop of Canterbury, who, as we learn from 



AND SELF-GOVERNMENT. 401 

when the people, by apparent acclamation, having elected one 
person, another aspirant believed he had a better right to the 
episcopate on different grounds or a different popular acclama- 
tion. That the maxim has a decidedly medieval character no 
one familiar with that age will doubt. The middle ages are, 
indeed, characterized by the fact that all Europe was parcelled 
out, not in states, but under a political system of graduated and 
encapsulated allegiance ; but where this system failed to reach 
a sphere with its many ramifications, the same age bore a con- 
clamatory character, especially in the earliest times. When a 
king was elected it was by conclamation. The earliest bishops 
of Rome were elected or confirmed by conclamation of the 
Roman people. Elections by conclamation always indicate a 
rude or deficiently organized state of things ; and it is the 
same whether this want of organization be the effect of primi- 
tive rudeness or of relapse. Now the maxim we are consider- 
ing has a strongly conclamatory character, and to apply it to 
our modern affairs is degrading rather than elevating them. 

How shall we ascertain, in modern times, whether anything 
be the voice of the people ? and next, whether that voice be 
the voice of God, so that it may command respect ? For, un- 
less we can do this, the whole maxim amounts to no more than 
a poetic sentence expressing the opinion of an individual, but 
no rule, no canon. 

Is it unanimity that indicates the voice of the people? 
Unanimity in this case can mean only a very large majority 
But even unanimity itself is far from indicating the voice of 
God. Unanimity is commanding only when it is the result of 
digested and organic public opinion, and even then, we know 
perfectly well that it may be erroneous and consequently not 
the voice of God, but simply the best opinion at which erring 
and sinful men at the time are able to arrive. 

Walsingham, took it as his text for the sermon which he preached when Edward 
III. was called to the throne from which the people had pulled down Edward II 
The reader is farther referred to Mr. G. Cornewall Lewis's Essay on the Influence 
of Authority in Matters of Opinion, (pp. 172, 1 73, and the accompanying notes,) 
for some interesting remarks upon it." 

26 



402 ON CIVIL LIBERTY 

Mr. Say informs us that when the first cotton manufactures 
were introduced into France, petitions from all the incorpo- 
rated large towns, from merchants and silk-weavers, were sent 
to Paris, clamoring in vehement terms against the " ungodly 
calico prints." Rouen, now the busiest of all the French cot- 
ton manufacturing places, was among the foremost, and the 
petition of the united three corporations of Amiens ended 
thus : " To conclude, it is enough for the eternal prohibition 
of the use of printed calicoes, that the whole kingdom is chilled 
with horror at the news of their proposed toleration. Vox 
populi vox Dei." This might well be considered as sufficient 
to prevent every reflecting man from using the maxim. We 
now know that the cotton tissue has become one of the great- 
est blessings of our race, giving comfort, health, and respect- 
ability to entire masses of men formerly doomed to tatters, 
filth, and its fearful concomitants, typhus and vice, and we 
know too that cotton manufacture is one of the most lucrative 
branches of French industry. 

Unanimity of itself proves nothing worth being proved for 
our purpose. In considering unanimity, the first subject that 
presents itself to us is that remarkable phenomenon called 
Fashion — a phenomenon wellnigh calculated to baffle the most 
searching mind, and which has never received the attention it 
deserves at the hands of the philosopher, in every point of view, 
whether psychological, moral, economical, or political. Unas- 
sisted by any public power, 1 by the leading minds of the age, 
by religion, literature, or any concerted action, it nevertheless 
rules with unbending authority, often in spite of health, com- 
fort, and taste, and it exacts tributes such as no sultan or legis- 
lature can levy. While it often spreads ruin among producers 
and consumers, it is always sure to reach the most absolute 
czar and subject his taste. Though the head may wear a 
crown, Fashion puts her shears to its hair, if she has a mind 
to do so. Far more powerful than international law, which 

1 It may, however, be mentioned, as a historical fact, that even fashion has 
been shrewdly drawn within the sphere of public action and influence, by the 
Emperor Napoleon III., through his graceful empress. 



AND SELF-GOVERNMENT. 



403 



only rules between nations, she brings innumerable nations 
into one fold, and that frequently the fold of acknowledged 
folly. How can we explain this stupendous phenomenon ? It 
is not necessary to do so here. The fact, however, must be 
acknowledged. It is the most remarkable instance of una- 
nimity, but will any one say that Fashion is a' vox Dei ? The 
very question would be irreverent were it not candidly made 
in a philosophical spirit. 

Nor is the dominion of fashion restricted to dress and fur- 
niture, nor to the palate and minor intercourse. Bitter as the 
remark may sound, it is nevertheless true that there are coun- 
tries void of institutions, where a periodical on political fashions 
might be published, with the same variety of matter as the 
Petit Courrier des Dames. 

There was a fearful unanimity all over Europe in the san- 
guinary and protracted period of witch-trials, joined in by 
churchmen and laymen, Protestant and Catholic, Teuton, Celt, 
and Sclavonic, learned and illiterate. If the fallacious and 
in some respects absurd "Quod ab omnibus, semper, ubique," 
ever seemed to find an application, it was in the witch-trial 
from the earliest ages of history, and in all countries down to 
the time when very gradually it ceased to be ab omnibus, 
semper, ubique. But was Sprenger's sad Malleus Maleflcarum 
on that account the voice of God? 1 What fearful fanaticisms 



1 It has been calculated that several millions of human beings have been sacri- 
ficed by witch-trials in modern times. [!] An article in the Westminster Review, 
January, 1 859, shows that the belief in witches is yet causing occasional disorder 
and crime in England. Indeed, if the famous Quod omnibus, etc., could ever 
be applied to any subject, it is to this. It has existed and still exists in all the 
corners of the earth, and with tribes wholly insulated. There has been always 
whipping in the armies, until Always ceased ; there was always slavery until it 
ceased ; a multitude of gods was always woi-shipped ; ghosts were always be- 
lieved in ; oracles were always believed in ; to take interest from the borrower 
was always declared a crime ; it was always believed that the earth is flat or 
that the sun moves ; it was always believed that Jews poisoned the wells, or that 
some general distemper whose causes could not be explained arose from poi- 
soned wells; people always believed that governments must answer for famines; 
gold was always believed to have some mysterious power, physical as well as 
psychological ; the stars were always believed to influence the character of indi- 



404 



ON CIVIL LIBERTY 



have not swept over whole countries with deplorable una- 
nimity ! The Romans were unanimous enough when they 
slaughtered the worshippers of that God whose authority is 
invoked to dignify the voice of men in the fallacious maxim. 
If the voice of the people were the voice of God, the voice 
of the people ought not only to be unchangeable, but there 
ought to be one people only. Two nations frequently clamor 
for war, and both, under the motto Vox populi vox Dei, draw 
the sword against each other. 

A remarkable degree of unanimity prevails in all those 
periods of excited commercial speculation, such as the Mis- 
sissippi scheme in France, the South Sea scheme in England, 
the railway mania we have seen in the same country, or the 
commercial madness in our land some fifteen years ago. 

If we carefully view the subject of unanimity, w r e shall find 
that in the cases in which vast action takes place by impelled 
masses — and it is in these cases that the maxim is invoked — 
error is as frequently the basis as truth. It is panic, fanati- 
cism, revenge, lust of gain, and hatred of races that produce 
most of the sudden and comprehensive impulses. Truth travels 



viduals; kings were always believed to have a peculiar healing power; it was 
always believed that wealth consists in money, and that therefore as one country 
gets rich others must needs get poorer, or that in the same degree as one man 
increases his wealth so he deprives others of it ; it was always believed that the 
security of the state requires the masses to be ground down ; it was always be- 
lieved that the eastern continent was all the land of the earth, and the suspicion 
that there might be another continent was even declared heretical ; it was always 
believed that great cleanliness was not conducive to the health of children ; it 
was always believed that indicted persons ought to be tortured, if they would 
not confess otherwise ; it was always believed that persons accused of treason or 
witchcraft ought not, on account of the " heinousness of their crimes," to have 
that protection which was granted to other indicted prisoners — until the Always 
and Everywhere ceased. These errors, most of which have caused commotions, 
risings, and bloodshed, were certainly the opinion of the people ; they were the 
opinion of our whole race, but assuredly not the vox Dei. 

Wherever a Semper et ubique exists, such as it is, and if not artificially pro- 
duced, there must be some adequate reason for it, but it need not be a good one, 
or founded in truth. When the semper et ubique is urged, in order to prove a 
thing, it has already ceased to be semper, etc. On the other hand, the maxim 
ought indeed to prevail unless there is good reason for the contrary opinion. 



AND SELF-GOVERNMENT. 405 

slowly. Indeed, all essential progress is typified in the twelve 
humble men that followed Christ. The voice of God was not 
then the voice of the people. What the ancients said of the 
avenging gods, that they are shod with wool, 1 is true of great 
ideas in history. They approach softly. Great truths always 
dwell a long time with small minorities, and the real voice of 
God is often that which rises above the masses, not that which 
follows them. 

But the difficulty of fixing the meaning of this saying is not 
restricted to that of ascertaining what is the voice of God. It 
is equally difficult to find out what is the voice of the people. 
If by the voice of the people be meant, as was stated before, 
the organically evolved opinion of a people, we do not stand 
in need of the saying. We know we ought to obey the laws of 
the land. If by the voice of the people be meant the result 
of universal suffrage without institutions, and especially in a 
large country with a powerful executive, not permitting even 
preparatory discussion, it is an empty phrase ; it is deception, 
or it may be the effect of vehement yet transitory excitement, 
or of a political fashion. The same is true when the clamor- 
ing expression of many is taken for the voice of the whole 
people. 2 

In politics, as in other spheres, it is never the loudest who 
are the wisest, though they are those who are heard and whom 
flatterers pretend to treat as the people and as the utterers of 
the voice of God. Governments frequently rule nations as 
some of the French theatres are ruled. Paid applauders, 
called claqueurs, force many a piece through a long series of 
performances ; and it is these very governments of claqueurs 
that resort most frequently to the Vox populi vox Dei. Yet 
Mademoiselle Mars, one of the most distinguished French 
actresses that have ever played, was in the habit of saying, 
How much better we would play if we cared less for applause ! 



1 Dii laneos habent pedes. 

2 The doctrine Vox Populi Vox Dei, is capable of development. In Novem- 
ber, 1857, some female, addressing a crowd in the city of New York, said : The 
voice of the working-men is the voice of God. 



406 ON CIVIL LIBERTY 

Another instance, showing that no dependence can be placed 
upon the maxim, is that of proverbs. They are doubtless the 
voice of the people, and many of them contain much wisdom^ 
but there are also many in favor of our worst passions and 
meanest dispositions. 

The following rhymes are given by Trench in his Lessons 
in Proverbs, as " of an old poet :" 

" The people's voice the voice of God we call ; 
And what are Proverbs but the people's voice, 
Coined first and current made by public choice ? 
Then sure they must have weight and truth withal." x 

A very large class of proverbs is directed against peasants 
and the laboring classes ; against women, lawyers, physicians 
—indeed, against all the staple topics of former satire. 

Whoever wishes to give great importance to a general move- 
ment, or sincerely believes it to be truly noble, calls it the 
voice of God. Pope Pius IX., in his proclamation of the 30th 
of March, 1848, says, in speaking of the general and enthusi- 
astic movement of the Italians for Italy and Independence : 
" Woe to him who does not discern the Vox Dei in this blast," 
etc. It cannot be supposed that the pope now considers that 
blast to have been the Vox Dei. 

Sometimes the maxim is doubtless used in good faith, as 
the French at times use, without reserve, that favorite expres- 
sion of theirs : The instinct of the masses ; but generally, I 
think, Vox populi vox Dei is used either hypocritically or 
when people have misgivings that all may not be right, pretty 
much in the same manner as persons say that an argument is 
unanswerable, when they have a strong foreboding that it may 
be found very answerable. 



Which might lead to this syllogism : 
Vox Populi Vox Dei. 
Proverbs are the voice of the people, 
Hence proverbs are the voice of God; 
There are many wicked proverbs, 
Ergo, etc. etc. 



AND SELF-GOVERNMENT. 



407 



Vox populi vox Dei has never been used in France so 
frequently as after the second of December, yet there are 
unquestionably thousands in that country who would find 
their religious convictions much bewildered, if they were 
obliged to believe that it was the voice of God which spoke 
through ballot boxes under the management of the most 
centralized executive in existence ; and that the voice of the 
Deity requires a thousand intrigues among men for its utter- 
ance. 

The doctrine Vox populi vox Dei is essentially unrepub- 
lican, as the doctrine that the people may do what they list 
under the constitution, above the constitution, and against the 
constitution, is an open avowal of disbelief in self-govern- 
ment. 

The true friend of freedom does not wish to be insulted by 
the supposition that he believes each human individual an 
erring man, and that nevertheless the united clamor of erring 
men has a character of divinity about it; nor does he desire to 
be told that the voice of the people, though legitimately and 
institutionally proclaimed and justly commanding respect and 
obedience, is divine on that account. He knows that the ma- 
jority may err, and that he has the right and often the duty 
to use his whole energy to convince them of their error, and 
lawfully to bring about a different set of laws. The true and 
stanch republican wants liberty, but no deification either of 
himself or others ; he wants a firmly built self-government 
and noble institutions, but no absolutism of any sort — none 
to practise on others, and none to be practised on himself. He 
is too proud for the Vox populi vox Dei. He wants no divine 
right of the people, for he knows very well that it means 
nothing but the despotic power of insinuating leaders. He 
wants the real rule of the people, that is, the institutionally 
organized country, which distinguishes it from the mere mob. 
For a mob is an unorganic multitude, with a general impulse 
of action. 1 Woe to the country in which political hypocrisy 



1 The subject of Mobs has been enlarged upon in the Political Ethics. 



4 o8 ON CIVIL LIBERTY 

first calls the people almighty, then teaches that the voice of 
the people is divine, then pretends to take a mere clamor for 
the true voice of the people, and lastly gets up the desired 
clamor. The consequences are fearful, and invariably unfitting 
for liberty. 

Whatever meaning men may choose, then, to give to Vox 
populi vox Dei, in other spheres, or, if applied to the long 
tenor of the history of a people, in active politics and in the 
province of practical liberty, it either implies political levity, 
which is one of the most mordant corrosives of liberty, or 
else it is a political heresy, as much so as Vox regis vox Dei 
would be. If it be meant to convey the idea that the people 
can do no wrong, it is as grievous an untruth as would be con- 
veyed by the maxim, the king can do no wrong, if it really 
were meant to be taken literally. 

However indistinct the meaning of the maxim may be, the 
idea intended to be conveyed, and the imposing character of 
the saying, have, nevertheless, contributed to produce in some 
countries a general inability to remain in the opposition — that 
necessary element of civil liberty. A degree of shame seems 
there to be attached to a person that does not swim with the 
broad stream. No matter what flagrant contradictions may 
take place, or however sudden the changes may be, there 
seems to exist in every one a feeling of discomfort until he 
has joined the general current. To differ from the dominant 
party or the ruling majority appears almost like daring to 
contend with a deity, or a mysterious yet irrevocable destiny. 
To dissent is deemed to be malcontent ; Jt seems more than 
rebellious, it seems traitorous ; and this feeling becomes ulti- 
mately so general that it seizes the dissenting individuals 
themselves. They become ashamed, and mingle with the rest 
Individuality is destroyed, manly character degenerates, and 
the salutary effect of parties is forfeited. He that clings to his 
conviction is put in ban as unnational, and as an enemy to the 
people. Then arises a man of personal popularity. He ruins 
the institutions ; he bears down everything before him ; yet he 
receives the popular acclaim, and, the voice of the people 



AND SELF-GOVERNMENT. 409 

being the voice of God, it is deemed equally unnational and 
unpatriotic to oppose him. 1 



1 The Paris journal, Le Pays, informed the public, at the time the present em- 
pire was established, that it had been raised to the dignity of an official paper to 
the imperial government. The announcement is made in that proclamatory and 
sententious style so much relished by the French, and in one of the paragraphs, 
standing by itself, it offers, with a naivete which surpasses anything the writer 
can remember, this comforting assurance : 

" In approaching power more closely, we shall not cease to have opinions." 

The facts that it is the "journal of the empire," that the whole article is short, 
that every sentence seems to be well weighed by the editor, a writer of note, 
and that the declaration was made on a very important occasion, give to the 
whole a character which entitles us to take it as something more than a passing 
newspaper sentence. 

When the maxim Vox populi vox Dei prevails, and governments change in 
rapid succession, it is a necessary result that there are hosts of turncoats. The 
French published in 1826, or thereabouts, a bitter satire on this herd of poli- 
ticians, consisting of a work called Dictionnaire des Girouettes — literally trans- 
lated, Dictionary of Weathercocks; but Anglicized, Dictionary of Turncoats. 
The names which headed the biographies in the book were succeeded by a 
number of symbolical weathercocks equal to the number of political somersets 
of which the respective persons could boast. There was a fearful row of hiero- 
glyphical vanes after some names. But in reading this droll and bitter account 
relating to a foreign nation, let us not forget St. Luke, vi. 41. 



APPENDIX. 



411 



APPENDIX 1. 



A PAPER ON ELECTIONS, ELECTION STATISTICS, AND GENERAL 
VOTES OF YES OR NO. 

Conscientious and well-informed men may possibly differ in 
opinion as to the question whether Cromwell was at any time the 
freely accepted ruler of the English people ; whether he was gladly 
supported by the people at large and readily acquiesced in by a 
small minority ; whether he imposed himself upon the country by 
the army and allayed opposition by the wisdom of his statesman- 
ship ; or whether he chiefly ruled by armed fanaticism. But it 
may be asserted without hesitation, that there is neither English- 
man nor American, substantially acquainted with elections, whose 
judgment on this subject could be influenced in any degree, one 
way or the other, were he informed that Cromwell had received 
an overwhelming majority of votes all over England confirming 
him in his absolutism, after he had passed his famous ordinance of 
1655, by which he divided the British territory into twelve districts, 
each presided over by a major-general with absolute power over 
the inhabitants, all existing laws to the contrary notwithstanding. 
There is not an American or Englishman, I think, who believes 
that such a confirmatory vote could have added to his right, or that, 
had such an event taken place, it could have kept Richard Crom- 
well on the protector's throne, or retarded the return of Charles 
the Second, a single day. And the larger the majority for Crom- 
well should have been, the more we would now consider it as a 
proof of the activity exerted by the major-generals, both in press- 
ing and compressing, but no one of us would connect it in any way 
with a presumed popularity of Cromwell, or consider it as an index 
of the opinion which the people at large entertained of his repeated 
making and unmaking of parliaments. 

A real or pretended result of such ex post facto votes may have 
a certain proclamatory value ; it may be convenient to point to it 

413 



414 ON CIVIL LIBERTY 

and decline all farther discussion; "The People's Elect" may be 
a welcome formula for ribboned orators, expectant poets, or time- 
serving editors : but there is no intrinsic value in it. Votes of this 
sort have no meaning for the historian, at least so far as the subject 
voted on is concerned, and they have a melancholy meaning for 
the contemporary patriot. There seems to be a Nemesis eagerly 
watching these votes, and each time proving, by events succeeding 
shortly after, how hollow they were at the time. 

An election, 1 which takes place to pass judgment on a series of 
acts of a person, or to decide on the adoption or rejection of a 
fundamental law, can have no value whatever, if the following 
conditions are not fulfilled : 

i. The question must have been fairly before the people for a 
period sufficiently long to discuss the matter thoroughly, and under 
circumstances to allow a free discussion. Neither the police re- 
strictions of government, nor the riotous procedures of mobs, nor 
the tyranny of associations ought to prevent the formation of a 
well-sifted and duly modified average public opinion. The liberty 
of the press, therefore, is a conditio sine qua non. If this be not 
the case, a mere general opinion of the moment, a panic on the 
one hand, or a maddened gratitude, for real or imaginary benefits, 
of a multitude excited for the day or the period, may hastily and 
unrighteously settle the fate of generations to come, and passion, 
fear, or vain glory may decide thatwhich ought to be settled by the 
largest and freest exchange of opinions and the broadest reciprocal 
modification of interests. It requires time for a great subject to 
present itself in all the aspects in which it ought to be viewed and 
examined, and for a great public opinion to form itself — the more 
time, the vaster the subject. All the laws regulating the formation 
of opinion in the individual apply with greater force to the. forma- 
tion of public opinion. 

It is especially necessary that the army be in abeyance, as it 
were, with reference to all subjects and movements appertaining 
to the question at issue. The English law requires the removal 
of the garrison from every place where a common election for 
parliament is going on. Much more necessary is the total neu- 
trality of the army in an election of the sort of which we now treat. 

1 There is no other term in our language, although it is obvious that these pro- 
cesses cannot be properly called elections. Votings would be more correct. 



AND SELF-GOVERNMENT. 4^ 

2. The election must be carried on by well-organized election 
institutions, extending over small districts, because in that case 
alone can a really general voting be secured. 

3. All elections must be superintended by election judges and 
officers independent of the executive or any other organized or 
unorganized power of government. The indecency as well as the 
absurdity and immorality of government recommending what is to 
be voted ought never to be permitted. 

4. The election returns ought to be made so that they are not 
subject to any falsification. They must not be fingered by the 
government officers. This is especially important if the country 
labors under a stringent centralism in which every civil officer 
avowedly acknowledges,, and is, according to command, bound to 
acknowledge, no principle or law above the direct command of his 
immediate superior ; in which the host of executive, administrative, 
police and semi-military officers form a compact body receiving its 
impulse of action exclusively from one centre ; in which publicity 
is no pervading element of acts relating to the public interest ; and 
in which no habits have yet been formed nor customs settled con- 
cerning the whole comprehensive election business. 

5. He, or that power, which passes under judgment, ought to be 
in a position that, should the judgment turn against him, he can be 
believed to abide by the judgment. If not, the whole is nothing 
but a farce. 

6. There must be really two things to choose between. If this 
is not. the case, the whole procedure amounts to no more than what 
we familiarly call " Hobson's choice," on a gigantic scale. 

If there be any reader who should object to this rule that, since 
we speak of elections, it is evident that there must be two things 
at least to select from, and that therefore this rule borders on the 
ridiculous, I would only say that history shows people have not 
always adopted it. There may be something ridiculous some- 
where, but it is not in the rule. It would be ridiculous to lay 
down the rule that, if people invite others to dinner, there ought 
to be something to eat, only so long as invitations to empty tables 
are assumed not actually to have taken place. 

7. The power claiming the apparent judgment ought not to have 
committed a criminal act, and then, as the law expresses it, insist 
on deriving benefit from its own wrong. Nor ought he, who pre- 



41 6 ON CIVIL LIBERTY 

tends to present himself for judgment, stand in the position of a 
trustee, disputing the validity of the power by which nevertheless 
he has acted, and under which he has accepted benefits. This is a 
common rule in all law, because it is common sense, and it is for 
the same reason a sound rule in politics. 1 

In addition to these rules, I may remind the reader of a funda- 
mental truth concerning all elections and votes — a truth which is 
simply prescribed by common sense, and yet has often been set 
aside. A majority having voted for a subject is of no earthly value, 
unless the subject be of such a character that there can be, at the 
time, a public opinion about it. If there were, in a company of 
men, different opinions as to the time of the day, we cannot solve 
the difficulty by putting the question : " All who are in favor of its 
being now six o'clock will say Aye ; those who are of the contrary 
opinion will say No." 2 No majority of ever so vast a country can 
decide for me the chloroform question, or whether Captain Erics- 
son's steam generator be or be not practical. And no majority, no 
matter how overwhelming, can be worth anything if there be not, 
in addition to a proper apparatus of evolving public opinion, of 
which we have spoken already, also one by which the true majority 
can be ascertained. It is an utter and constantly recurring error 
into which those that are unacquainted with the nature and the 
economy of liberty fall, to believe that what liberty requires is the 
ascertainment of incoherent votes on every question sprung upon 
society separately and incoherently. A French paper recently said 
that under certain circumstances the emperor Napoleon the Third 
would put the question of war to the universal suffrage of France. 
Of course I do not believe in the possibility of such an act, but I 
have mentioned the statement as an illustration. How can the 
French people at large decide on a question of war or peace, if 



1 This has been well pointed out in the case of Louis Napoleon, by the Hon. 
A. P. Butler, United States senator for South Carolina. 

2 In the time of the late French so-called republic, it occurred in the little com- 
mune Saint- Andre (department of Nord) that in a new church one of three 
altars remained without a patron saint. There were three candidates : St. Joseph, 
St. Roch, and St. Cecilia. The priest believed that the question had best be left 
to the people. All voted, even women and children of discretion. St. Cecilia 
carried the election by a majority of seventeen votes. The old Icelanders some- 
times decided by vote whether Christ or the old gods should be worshipped. 



AND SELF-GOVERNMENT. 417 

France cannot debate the matter, cannot reflect on it ? and what 
can a majority of votes on so grave a question mean, when the whole 
management of the vote, from first to last, is in the hands of that 
strongly concentrated government which puts the question ? 

I return to the seven requisites which I have pointed out. 

If any one of these conditions be omitted, the whole election or 
voting is vitiated, and can in no way be depended upon. It will 
go with every experienced and truthful citizen, and pass with every 
serious historian, for nothing more than, possibly, for skilfully 
arranged deceptions of the unwary and very inexperienced. It is 
a question, indeed, whether these conditions can be frequently ful- 
filled, and whether it be possible in the nature of things to fulfil 
them at all, or any of them, in uninstitutional countries — in large 
countries enmeshed like a huge being by the close net-work of a 
bureaucratic mandarinism. They must, then, be resorted to as 
rarely as possible. In strictly organized police governments they 
have no value, except for the very purpose of deceiving, or of giv- 
ing an apparently more firmly-based fulcrum for the lever of the 
power already existing. 

Every one of my readers will agree with the necessity of the 
condition which has been stated as the first. There is the greatest 
difference between an accidental or momentary general opinion, 
and an organically-produced, well-settled public opinion — the 
same difference which exists between a "decree of acclamation," 
as those decrees in the first French revolution were called, which 
were proposed and forthwith adopted by a burst of feeling or a 
clamor of passions, and an extensive law which has first been dis- 
cussed and rediscussed, called for and assailed in papers, pamphlets, 
meetings, and institutions, and then, after long and patient debate, 
passed through the entire sifting and purposely retarding, repeti- 
tionary, and revisionary parliamentary process. Real public opinion 
on public matters of a truly free people under an institutional gov- 
ernment is generally the wisest master to which the freeman can 
bow; general opinion is worth nothing as a political truth. It 
may be correct ; it may be vicious, as a thousand rumors show, 
and public rumor is general opinion. This subject of public and 
merely general opinion has been largely discussed in the Political 
Ethics. 

When Cromwell had dissolved parliament, and even dissolved 

27 



4 i8 OA? CIVIL LIBERTY 

the famous council of state, in spite of Bradshaw's opposition, we 
are informed that addresses of gratulation and thanks reached him 
from all parts of England, just as they were crowded upon L. N. 
Bonaparte after the second of December, 1851. We cannot judge 
whether they expressed the opinion of the majority; for in politics, 
as in common life, it is the noisy that are heard and make them- 
selves observed, while the majority and more substantial people are 
silent and overlooked ; but, for argument's sake, we will grant that 
those addresses to Cromwell expressed the opinions, the views, the 
feelings of the majority of the nation at the moment. Even in 
this case they expressed nothing more than the existing general 
feeling, not the public opinion of England, as successive events 
very soon proved. 

To seize upon loud and demonstrative general opinion and feel- 
ing of a part of the people, while compressing the public opinion 
of the whole, is a frequent means of successful tyranny. It was 
the way the first French convention frequently managed things, and 
Dan ton knew it well. He acknowledged it. 

As to the second and subsequent conditions which have been 
enumerated, the following observations may prove of interest. 
Numerous and extensive inquiries, referring to the United States 
as well as to Europe, and some of which I propose to give to the 
reader, have proved to me certain instructive facts relating to the 
statistics of popular elections. I do not treat in this paper of the 
voting in assemblies of trustees, of representatives or boards. 

I must also remark that I shall always use the term election for 
direct elections, in which the voter votes directly upon the ques- 
tion at issue, and not for a person who will have the ultimate right 
of the direct vote ; either for a person or on a measure. The 
election of our presidents was intended to be a double election, 
and in form it continues to be such ; for we elect electors. But it 
is well known that the election has long since become virtually a 
direct one, so far as the individual votes express the desire of the 
voters, because the persons voted for as electors declare beforehand 
for whom they shall vote in case they are made electors, and 
after being elected electors they do not become members of a de- 
liberative body in which the question of the presidential election is 
discussed. 1 



1 This knowledge of the vote which an elector will give does of course not 



AND SELF-GOVERNMENT. 



419 



Where the double election is introduced as an active principle, 
it deprives elections of much, and often of all, interest, and is fre- 
quently resorted to for this very purpose, by governments which 
do not feel sufficiently strong to refuse the claims of the people to 
a share in the government, yet desire to defeat the reality of such 
a share. 

The following, then, are the positions which experience seems 
fully to bear out : 

The more exclusive the privilege of voting is, the smaller is 
the ratio of qualified voters who abstain from voting; and the 
largest number of abstinents occurs where universal suffrage is 
freely left to itself, and not interfered with by the executive. 

The smaller the number of qualified voters, the smaller is also 
the ratio of abstinents. 

So soon as the number of qualified voters exceeds five or six 
hundred, the number of abstinents will be at least twenty-five per 
centum. 

The larger the number of qualified voters, voting upon the same 
question or persons, and under one and the same electoral system, 
the larger is also the ratio of abstinents. 

The larger the area over which one and the same election or 
voting extends, the larger is the proportion of abstainers. 



affect the result. Each elector represents a majority and a minority, but his vote 
can only be cast for one candidate. Nevertheless, that which is called the popu- 
lar vote indicates a proportion between the presidential candidates very different 
from that which appears from the official votes of the electors. For instance, 
the popular vote at the last presidential election stood : 

For Pierce 1,504,471 

" Scott 1,283,174 

" Hale 148,851 

and the votes of the electors stood 

For Pierce ........ 254 

" Scott 42 

So that the popular vote stood : 

Pierce to Scott as 132 to 1 00. 
But the votes of the electors : 

Pierce to Scott as 605 to 100. 

Such men as Benton, McDuffie, Calhoun, Huger, Pickens, of N. Carolina, 
have recorded their opinion in favor of giving the election of the president to 
the people. 



420 ON CIVIL LIBERTY 

When there are three fairly supported candidates, the total num- 
ber of votes polled is larger than when there are but two candidates, 
all other things being equal. 

The whole number of polled votes, compared to the number of 
qualified voters, does not necessarily indicate the interest a com- 
munity may take in a measure or person. Whenever people feel 
perfectly sure of the issue, there are many who abstain because 
their votes will not defeat the opponent ; and many others abstain, 
because their candidate will be elected at any rate. 

If the number of qualified voters (voting exactly upon the same 
question or person) exceeds several thousands, one-half of it is 
generally a fair number for the actual voters ; two-thirds show an 
animated state of things, and three-fourths are evidence of great 
excitement. It will be observed that the words : Voting exactly 
upon the same question or person — are a necessary qualification of 
these positions. Although an election all over England may turn 
upon free trade or protection, yet, if it be a parliamentary election, 
so that these questions appear only represented in the respective 
candidates, it is clear that this would not be an election extending 
over the area of England, in the sense in which the term is taken 
here, or in which we take it when we speak of our presidential 
election. 

Voting upon men generally draws out more votes than voting 
upon measures themselves. 

Popular votes upon measures to be expressed by yes or no are 
wholly fallacious, unless this vote be the last act of a long and 
organic process ; for instance, if a new constitution has been pre- 
pared by a variety of successive acts, and is ultimately laid before 
the people with the question, Will you, or will you not, have it? 

Popular votes in a country with an ample bureaucracy of a cen- 
tralized government, on questions concerning measures or persons 
in which the government takes a deep interest, and by elections 
the primary arrangements of which are under the direction of the 
government, that is, under the executive, must always be received 
with great suspicion. It is a fact well worthy of remembrance, 
that the French people have never voted no, when a question 
similar to that which was settled, as it is called, by the election of 
December, 1851, was placed before them. In the year 1793, in 
the years III., VIII. , and XIII., similar appeals were made, and the 



AND SELF-GOVERNMENT. 421 

answer was always yes, by majorities even greater than that on 
which Louis Napoleon Bonaparte rests his absolutism. When a 
senatus consultum raised Napoleon the First to the imperial dignity, 
and the people were appealed to, there were in the city of Paris 
70 noes and 120,947 ayes, and in all France 2500 noes against 
3,572,329 ayes. A vote of yes or no becomes especially unmean- 
ing when the executive seizes the power by a military conspiracy, 
and then pretends to ask the people whether they approve of the 
act or not. 

From the best authorities on the Athenian government, for in- 
stance Boeckh's Political Economy of Athens, and Tittmann's Polit- 
ical Constitutions of Greece, under the head of Ostracism, we see 
that the common vote, polled by the Athenians, was about 5000 
(Thucydides, viii. 72) out of from 20,000 to 25,000 qualified voters. 
Six thousand votes were considered the largest amount. They 
were required, therefore, for extraordinary cases, such as ostracism, 
or for anything that was against established law, or related to indi- 
viduals only. Six thousand Athenian votes thus practically cor- 
responded to our two-thirds of votes requisite for some peculiar 
cases purposely removed beyond the pale of a simple majority, 
that is at least one more than one-half of the voters. Here, then, 
we have one-fourth of qualified voters, usually voting, although 
the voting took place in one and the same city by voters the great 
majority of whom lived in the city. 

Some writers have doubted whether six thousand votes upon the 
whole were necessary for ostracism and other peculiar cases, or 
six thousand votes in favor of the measure. I have no doubt that 
the first was the case. Plutarch distinctly says that one of the 
persons proposed was always ostracised, provided six thousand 
votes had been cast. 1 (Aristides, i. 7.) The same passage seems 
to prove that if six thousand votes, altogether, had been cast, he 
who had the plurality of votes was banished; for there were 



1 [Schomann, Gr. Alterth., i. 398, considers that 6000 was the number neces- 
sary to be cast against any one person, following in this the corrected Schol. on 
Aristoph. Eq. 852, (855.) Plutarch, not a first-rate authority, is a clear witness 
on the other side. He says that the archons counted the mass of votes, and if in 
all there were not 6000, declared that nothing had been done. This seems on 
the whole most probable. It is not clear that a plurality out of 6000 decided the 
ostracism of one who had been voted upon.] 



4 22 ON CIVIL LIBERTY 

frequently several persons proposed for ostracism, or citizens knew 
that they were prominent, and therefore liable to fall within the 
ostracophory, and tried to prove that they did not possess the 
feared influence. Ostracism was a purely political institution, re- 
sorted to by democratic absolutism to clip prominences and keep 
the hedge on a level. It was no punishment, and until Hyper- 
bolus, a low fellow, was ostracised, it added to the reputation of 
a citizen. 

That there were many abstainers from voting in Athens, we 
know from the fact that on the one hand the lexiarchi sent their 
toxotae before them to mark with red-powdered cords the white 
garments of those who tarried, so that the lexiarchi, six in number 
with thirty assistants, might deprive them of the tickets by means 
of which they could draw pay. In this, then, the Athenians re- 
sembled the early inhabitants of New England, who punished 
abstaining from voting or neglecting to send a written vote.* 

On the other hand, we know that every Athenian of the age of 
twenty received at first one, then three oboli for attending a popu- 
lar assembly. This reward was called ecclesiasticon. 

Why there should have been at Athens so many more abstainers 
than generally in modern times, may be explained, probably, on the 
ground that many citizens were absent as soldiers, that many lived 
in the country, and that Athens was a direct, untempered de- 
mocracy. Where the democratic absolutism visibly appears every 
day in the market, people get tired of it. Besides, the reason 
which frequently induces so many of our best people to abstain 
from voting, the unwillingness to leave business, must have oper- 
ated very strongly in Athens, when voting was so frequent and 
common. Let us imagine Boston or New York as an unmitigated 
democratic city-state, calling ten times a year for the meeting of 
the citizens ; does any one believe that the most constant voters 
would come from the workshops and the ship-wharves rather than 
from the tippling-shops and filthy lanes of vice? 

I have stated already that I have directed my inquiries to elec- 
tion statistics for many years, and over a very large space. The 
reader will admit that I can give a few instances only. 

In the year 1834, there were in France no more than i7i,oi<5 

1 See the Laws of New Plymouth, published by Authority, Boston, 1836, pp. 
41 and 128. 



AND SELF-GOVERNMENT. 



423 



electors; yet 129,211 only were polled at the different electoral 
colleges, that is only 75 out of 100 qualified voters availed them- 
selves of their privilege. So there were in 1837 in the same coun- 
try 198,836 qualified voters, and 151,720 votes were polled, which 
makes 76 of 100. 

It will be remembered how small a number of citizens compared 
to the whole population were entitled to vote. The number of 
qualified voters at each electoral college was very restricted, and 
the voters formed a privileged class, compared to the other 
citizens. 

The January number of the Edinburgh Review of 1852 contains 
a list of sixty-four English election districts, with the numbers of 
registered or qualified voters, and of the actually polled votes in 
each, at the last general election. The districts whose qualified 
voters amount to less than one thousand have been separated by 
me from those which possess more than one thousand. The aver- 
age number of voters of the first class was 500, and 25 per centum 
on an average abstained from voting. The average number of 
qualified voters of the other class was between 2000 and 3000, and 
of them 42 per centum abstained. So that, if there be about 500 
voters, only 75 -in a hundred go to the poll; if there be about 
2500, only 58 in a hundred do so. 

This is the more striking if it be considered that one thousand 
entitled voters is after all a very small number compared to those 
to which we are accustomed, and that far the greater part of the 
elections given in the mentioned table are town elections, or elec- 
tions with the most easily accessible polls. 

After the chief part of this paper had been written, a very 
striking fact corroborated the results at which I had arrived. 
The Edinburgh Review for October, 1852, contains an article on 
Representative Reform, in which there is " A Table showing the 
Number of Counties and Boroughs in England, Wales, and Scot- 
land, in which Contested Elections have taken place in the year 
1852." Where an election afterwards contested takes place, it 
will be allowed that generally there must be great excitement. All 
voters are brought up over whom the candidates or their agents 
have any influence. Yet it appears from this table "that the 
registered voters in all the contested places reached 507,192, while 
those who recorded their votes did not exceed 312,289, or about 



424 



ON CIVIL LIBERTY 



60 per cent of the whole." This is very remarkable; for out of 
175 places or counties whose elections were contested, 46 only- 
numbered 3000 qualified voters or more. 

The whole election to which all these statistics refer was that 
between the adherents to the administration of Earl Derby, and 
those who considered it an incumbrance to the country. The con- 
test was between Free Trade and Protection, and, I suppose, the 
English would plainly call it an excited election. 

I pass over to instances not less striking, belonging to our own 
country. 

According to detailed official documents, giving the number of 
qualified voters in every township in Massachusetts, and the num- 
ber of votes actually polled during the election of the governor of 
that state in 1851, an election of unusual excitement, there were 
182,542 persons entitled to vote, and 131,187 votes actually re- 
ceived. This gives less than three out of four qualified voters, or 
less than 75 in a hundred. If we consider that Massachusetts is 
no extensive country ;.that it is more densely peopled than France, 
having 127.40 inhabitants to the square mile, while France has 
only about 125; that the roads are good and numerous; that the 
people are well trained in the whole election business ; and that, 
as it has been stated, the excitement was very great, it furnishes us 
with a striking piece of evidence that the electoral barometer will 
hardly ever rise above 75 in a hundred. 1 

There cannot be a more deeply interesting election than that 
which took place in the year 1851 in South Carolina, in which the 



1 In Letter VIII. of Silas Steadfast (believed to have been George S. Hillard) 
on the proposed change of the constitution of Massachusetts, "it is said: "In 
point of fact, no governor of Massachusetts was ever chosen by a majority of all 
the existing votes.'''' 

In November, 1853, when great excitement about the new constitution existed 
in Massachusetts, the vote for governor (who was voted for at the same time) 

stood thus : 

Whig 66,759 

Freesoil Democrat 35>779 

National Democrat ....... 5 '47° 

Freesoil 29,897 

Scattering 224 

138,129 
which resembles closely the vote of 1851. 



AND SELF-GOVERNMENT. 



425 



palpable question was, shall or shall not the state secede from 
the Union? The political existence of the state formed the issue. 
On that occasion 42,755 votes were polled, which, taking one- 
fourth of the white population as the number of qualified voters, 
would show that about two-thirds only of those who had a right 
to vote actually did vote, or that 66 out of a hundred went to the 
poll. 

Connecticut, a small and densely peopled state, sent, at the very 
excited election of 1852, about 75 or 76 out of each hundred voters 
to the poll. The calculation has been made from the official elec- 
tion returns, and taking one-fourth of the population as entitled to 
vote, which I have found to be the average number, where univer- 
sal suffrage exists. 

These instances might be greatly multiplied from statistical ma- 
terials collected by me. I may only add the proportion of ab- 
stainers from our presidential elections since 1828. I have estimated 
the number of qualified voters by calculating, for the election year, 
the white population, according to the annual increments given by 
Mr. Kennedy, the first superintendent of the United States Census 
for 1850, and dividing that number by four. 1 I have called the 



1 In dividing by four I reduce the number of qualified voters in the United 
States too much, as will appear from the following table, abstracted from the 
American Census of 1850, and kindly furnished me by Mr. De Bow, at present 
superintendent of the census : 



States. 


Aggregate 
population. 


Total males 20 years 
of age and over. 


Ratio to the 
whole population. 




994,5H 

147,545 

370,792 

2,311,786 

1,980,329 


280,623 

40,563 
104,855 
572,284 

473>5°i 


3-54 
3-63 
3-53 
4.04 
4.18 






Pennsylvania 


Ohio 





This gives an average ratio of 3.784. But this table shows the proportion of 
white males of twenty years and upwards, while a person acquires the right of 
voting with his twenty-first year only. It will be, therefore, pretty correct, if I 
take one-fourth of the whole white population. In several states colored persons 
go to the polls. If they were counted, it would reduce the proportion of actual 
voters to the number of qualified voters ; but I am willing to take one-fourth 
only. 



426 



ON CIVIL LIBERTY 



real voters in the table votants, and the qualified voters simply 
voters. * 





White 


Number of 


Proportion of 




population. 


votes cast. 


votants to voters. 


1828 


10,537,378 


1,160,418 


0.44 


1832 


11,169,616 


1,290,468 


O.46 


1836 


12,117,968 


1,501,298 


O.50 


1840 


14,189,895 


2,402,659 


0.67 


1844 


15,469,287 


2,702,546 


0.69 


1848 


17,154,55! 


2,874,712 


O.67 


1852 


20,027,899 


2,936,896 


O.58 



It is necessary to take into consideration that in the whole south 
of the United States voting is a right of a privileged class, and that 
the proportion of abstainers is probably much smaller than it would 
be otherwise. 

Against this calculation, however, so uniform in England, here, 
and in France in former times, we have the vote of seven millions 
and a half for Louis Bonaparte in 1852, when France was asked 
whether she approved of his breaking through oath and pledge, 
and of his proffered despotism, annihilating not only her constitu- 
tion, which indeed was more than a frail one, but all the progress 
she had made in representative government, all her liberties, and 
all her civil dignity, and submitting her fortunes and all to a ruler 
who, never having been a soldier, tells civilized France that the 
history of armies is the history of nations, that responsible min- 
isters are nothing but incumbrances, and that France desires a 
government which receives its whole impulse from one man. 2 

The statement which the government of the president of France 



1 I am aware that, apparently, Votare has not been used in Low Latin for 
voting. Du Cange says that Votum was used in the middle ages for suffrage, 
hut Votare for Vovere, Spondere. As it is, however, no uncommon case in the 
English language to have a noun and an adjective which is not derived directly 
from the former but from an intermediate though "missing" verb, which would 
be derived from the noun, did it exist, I feel sure the reader will permit me to 
use the term Votant, in a language in which brevity is often considered to cover 
logical and etymological sins. 

2 See the preamble to the constitution proclaimed by Louis Napoleon. 



7,439; 


,216 


64o ; 


737 


36, 


,820 


372; 


>599 



AND SELF-GOVERNMENT. 427 

officially published regarding the election which surrendered every- 
thing to the unchecked sway of the despot was thus : 

Voted Yes 

Voted No 

Annulled votes . ... 
Did not vote at all 

8,489,372 

Whatever may be thought of the suspiciously small number of 
noes, I do not believe that there is a man living who knows any- 
thing of elections, and who is ready to accept the given number 
of abstinents as a correct statement. According to the official 
number, between four and five persons only in one hundred 
abstained from voting, or were prevented by illness, absence from 
home, old age, and the like, from doing so — a number utterly in- 
credible, and which, it must be believed, would have been allowed 
to appear much larger had the officials who managed the business 
been acquainted with the usual number of abstinents. The minister 
of state, Mr. Persigny, stated himself, in a circular letter to the 
prefects at a later period, that there were about eight millions of 
voters in France. This agrees pretty well with the common rule 
of taking about one-fourth of the whole population as the number 
of qualified voters where universal suffrage exists. There must then 
have been a great deal of manipulation within that number. This 
is further proved when we consider that, according to the official 
reports of the commissioners whom the chief of the French state 
sent into the departments to see who of the political prisoners might 
be pardoned, many thousands were actually in prison at the time of 
the general election. Colonel Espinasse reports that in the depart- 
ments of the Lot and Garonne, and the Eastern Pyrenees, there 
were 30,000 affiliated socialists, and in the department of the 
Herault 60,000. In three departments alone 90,000 disaffected 
persons. If they voted, they must have been forced by the police 
to vote for the coup d'etat : if they did not vote, what becomes of 
the given number of abstinents ? But there is another fact which 
shows the falsification of the statement, either by actually falsify- 
ing the numbers, or by forcing people to give the desired vote, or 
by both. 

Algeria is not so directly under the influence of the police, nor 



428 ON CIVIL LIBERTY 

could the statement concerning that colony be so easily falsified. 
Accordingly we have the following : Out of 68,000 voters (the 
army included) 50,000 abstained; 5735 voted for L. N. Bonaparte, 
and 6527 against him. Eighteen thousand only seem to have 
voted out of 68,000, not even 29 in 100. 

I think this will sufficiently show how little reliance can be placed 
upon such a vote in a centralized country, and how futile it is to 
found any right or pretension upon it. Votes, without liberty of 
the press, have no meaning; votes, without liberty of the press, and 
with a vast standing army, itself possessing the right to vote, and 
considering itself above all law, have a sinister meaning ; votes, 
without an unshackled press, with such an army, and with a compact 
body of officials, whose number, with those directly depending upon 
them, or upon government contracts, amounts to nearly a million, 
have no meaning, whether he who appeals to the people says that 
he leaves " the fate of France in the hands of the people," or not. 

This paper was written, with the exception which I have men- 
tioned, after the vote on the coup d'etat had been given. Since 
then, the plebiscitum, making Louis Napoleon emperor, has been 
added. 

The vote of the people on the question : Shall, or shall not, 
Louis Napoleon Bonaparte assume the imperial crown ? is officially 
stated to have been thus : 

The number of electors inscribed in the de- 
partments is . . . . . . 9,843,076 

The number of the land and naval forces . 360,352 



Total of voters . . . . . 10,203,428 
This number is thus distributed : 



Having voted yes 

Having voted no 

Votes void on some account or other 

Abstinents .... 

Total .... 



7,824,189 

253,H5 

63,326 

2,062,798 

10,203,428 



This shows a very different result from the vote on the coup 
d'etat. It gives twenty-five abstinents in a hundred ; but there are 
other points not easily understood. Of thirty-one persons, one 
only voted no. This is a state of harmony to which people of the 



AND SELF-GOVERNMENT. 



429 



Anglican race, with all their calmer temper, we venture to say, 
have never yet attained. It is equally inexplicable how, of a popu- 
lation which, in 1851, amounted to 35,781,628, there can be, in 
the year 1852, as many as 10,203,428 authorized to vote, or males 
above twenty-one years old. The fourth part of 35,781,628 is 
only 8,945,407; and, if a fourth part is correct, there would be 
1,258,021 unaccounted for. Nor can we forget, here, the immense 
number of persons who, according to official reports, are at any 
given moment in the prisons of France. These, too, must be 
deducted. 

I add, in conclusion, the statement of a Paris paper, which gives 
a different account, so far as that city is concerned. 

In Paris, the number of abstinents were : 

In 1848, for the presidential election . .0.25 
In 185 1, for the ratification of the coup d'etat, 
and the election of the president for ten 
years . . . . . . .0.20 

In 1852, for the imperial crown . . .0.14 

Only about one-half as many abstained from voting, when the 
empire was to be re-established, as abstained in the excited times 
of the republic, when there were several candidates. 1 

I do not believe that direct money-bribery exists in France to 
any great extent. Universal suffrage, it would seem, would pre- 
clude the possibility. But indirect bribery, by promises of promo- 
tion, or allowing shares in profitable undertakings, and, above all, 
intimidation, positive or indirect, I believe to have existed in the 

1 On the loth of December, 1848, when the first French president, for four 
years, was voted for : 

There were polled . . . . . . 7,327,345 

Of which : For Louis Napoleon .... 5,434,226 

For General Cavaignac ...... 1,448,107 

" Ledru Rollin ....... 376,119 

" Lamartine ........ 17,910 

" Changarnier ....... 4,700 

Lost Votes ........ 12,600 

France contained, in the year 1846, 35,400,486 inhabitants; consequently, in 
1848 there were about 9,000,000 of authorized voters; and 7,327,345 having 
voted, about 80 in 100 went to the poll, according to this statement. Yet it 
must be supposed that the eagerness to go to the ballot-box was, in that year, 
much greater than after the coup d'etat. 



430 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 



largest possible extent. We may certainly assume that every 
government officer, or person connected in some way with govern- 
ment, is worth his four or five votes at least — which he will direct 
as he in turn is directed to do by his superiors, or he loses his 
place. 1 Then, we must take into account the influence of the 
priests in rural communities, or of the bishops in general. They 
openly exerted themselves, by word and letter, in favor of the present 
emperor. The influence of the prefects and sub-prefects on all 
occasions of election is uniform and perfectly well known, generally 
quite public, and the annoyance to which a man exposes himself 
by voting a ballot not agreeing with that which has been furnished 
by the government, is so great that no independence exists at 
French elections, except, in a limited degree, sometimes in Paris 
itself, on account of its dense and large population, although the 
influence of the court and government is there also the greatest on 
ordinary occasions. 



1 The reader cannot fail to remember here the constitution proposed by Mad. 
de Stael for France, after the Restoration, and which was to consist of two 
paragraphs only, namely, of one declaring all Frenchmen to be government 
officers, and of another, providing that every government officer should have 
a salary. 



APPENDIX II. 



A PAPER ON THE ABUSE OF THE PARDONING POWER. 

This paper was originally a report. I had been appointed by a 
meeting of the Friends of Prison Discipline, without being present, 
the chairman of a committee, which was requested to report to 
the next meeting on "The Pardoning Privilege and its Abuse." 
The following was the result of this appointment. The legislature 
of the State of New York did me the honor of publishing it as a 
document ; but it was printed so incorrectly, the subject is of such 
vital interest to a people who desire to live under the supremacy of 
the law, and the abuse continues in many parts of our country to 
so alarming an extent, that I do not hesitate here to reproduce the 
paper. 

The pardoning privilege consists in the authority partially or 
wholly to remit the penalty which, in the due and regular course 
of justice, has been inflicted for some offence. A pardon is always 
an act of frustrating that common justice which has been estab- 
lished by law as the best means of protection ; a nullification of 
legal justice. It is the only power in modern politics, in which 
the supremacy of the law is acknowledged as the primary condition 
of liberty, that can be compared in any degree to the veto of the 
ancient tribune. 1 It is an irregular power, depending upon irre- 
sponsible individual will. We ought, therefore, clearly to be con- 



1 An inaccuracy of terms has in the case of the veto power created much con- 
fusion. The ancient tribune had the privilege of vetoing, and, a so-called vetoing 
power being ascribed to the chief magistrate of modern constitutional states, 
people are apt to confound the two, and attack or defend them on common 
grounds. Yet the two differ materially. The Roman tribune [could prevent the 
passage of a law and of a decree of the senate by his intercession or veto, and 
he could by his auxilium, as the magistrate originally of the plebs, obstruct acts 
of magistrates judged by him to be adverse to the interests of the plebs, (and 
afterwards of the populus,) even to the extent of arresting them. This las): was 

431 



432 ON CIVIL LIBERTY 

vinced of its necessity; and if this can be proved, we ought to 
inquire whether so extraordinary a power must not be guarded by 
proper limitations, especially if it should be found that it is liable 
to be seriously and even alarmingly abused. 

In order to understand more fully the whole subject, it will not 
be amiss if we endeavor to obtain a view of the origin of this 
power, and to see why it is that everywhere we find it as an at- 
tribute of the chief executive power ; whether this fact must 
be attributed to any inherent characteristics, or to incidental 
circumstances. 

When all government is yet mixed up with the family relations, 
and the individual views of the ruler alone prevail, he pardons, as 
a matter of course, whenever he sees proper and feels impelled so 
to do ; but developed despotism over extensive states takes a dif- 
ferent view. Fear of insecurity and suspicion of disobedience to 
the commands of the despot often lead the ruler to fence himself in 
with a strict prohibition of applications for pardon. That which a 
wise people does for virtuous purposes by a constitution, namely, 
the establishing, in calm times, of rules of action for impassioned 
periods, distrusting their own power of resisting undue impulses, 
and thus limiting their power, the despot does from fear of his own 
weakness, and therefore limits his own absolute power that he may 
not be entrapped into granting a pardon for disobedience. Chardin 1 



their original power, in aid of which their inviolability was of importance.] But 
the modern veto has nothing to do with the law once passed; it amounts to no- 
thing more than the withholding of one necessary ingredient to pass a bill into a 
law. In governments where the crown has the concurrent or sole initiative, 
either house, whose consent is necessary in order to make a law, may be said to 
have the veto power against the crown with the same propriety with which we 
call the power, in our president, of withholding his approval a vetoing power. 
The president can never interrupt the operation of a law once made a law. In 
the case of pardoning, however, the power actually amounts to a tribunitial veto. 
There the executive, or whoever may possess the pardoning privilege, actually 
stops the ordinary operation of the law. A man has been laboriously tried and 
sentenced according to the course minutely laid down by the law, and another 
power steps in, not according to a prescribed course or process of law, but by a 
pure privilege left to his own individual judgment, and says: I prohibit; and 
the due and regular course of law is interrupted accordingly. This is vetoing 
power in its fullest sense. See on the Veto, in chap. xvii. pp. 200, 201, 202, of 
this work. 

1 Voyage en Perse, London, 1686-1715. 



AND SELF-GOVERNMENT. 



433 



tells us that in his time it was, in Persia,. highly penal to sue for 
pardon for one's self or for another person ; the same was a capi- 
tal offence under the Roman emperors — at least under the tyrants 
among them, who form the great majority of the fearful list. Still 
it is clear that the last and highest power, the real sovereign (not 
only the supreme) power, must include the power of pardoning. 
As in Athens the assembled people had the right of remitting 
penalties, 1 so does the civil law acknowledge the privilege in the 
emperor who was supposed to be the sovereign, and acknowledged 
as the source of all law. Christianity confirmed these views. The 
mercy of the Deity is one of its chief dogmas ; mercy, therefore, 
came also to be considered as one of the choicest attributes of the 
ruler, who on the one hand was held to be the vicegerent of God, 
and on the other, the sovereign source of law and justice ; nor can 
it be denied that, in times when laws were yet in a very disordered 
state, the attribute of mercy in the ruler, and the right of pardon- 
ing flowing from it, was of great importance, and, upon the whole, 
probably beneficial to the people. The fact that the pardon- 
ing power necessarily originated with the sovereign power, and 
that the rulers were considered the sovereigns, is the reason why, 
when jurists came to treat of the subject, they invariably presented 
it as an attribute indelibly inhering in the crown. The monarch 
alone was considered the indisputable dispenser of pardon ; and 
this again is the historical reason why we have always granted the 
pardoning privilege to the chief executive, because he stands, if 
any one visibly does, in the place of the monarch of other nations, 
forgetting that the monarch had the pardoning power not because 
he is the chief executive, but because he was considered the sover- 
eign — the self-sufficient power from which all other powers flow ; 
while with us the governor or president has but a delegated power 
and limited sphere of action, which by no means implies that we 
must necessarily or naturally delegate, along with the executive 
power, also the pardoning authority. 

Although the pardoning power has always existed, and 'has 
been abandoned by ultra-despotism for the sake of despotism itself, 
yet the abuse to which it easily leads, and the apparent incon- 
gruity which it involves, have induced many men of deep reflec- 
tion, in ancient as well as in modern times, to raise their voices 



1 Demosthenes against Timocrates. 
28 



434 



ON CIVIL LIBERTY 



against it: of whom we may mention Plato and Cicero 1 among 
the ancients, and Pastoret, 2 Servin, Filangieri, and the benevolent 
Beccaria among the moderns. The latter, the pioneer of penal 
reform, and one of the benefactors of mankind, has the following 
remarkable passage : 3 

"As punishments become more mild, clemency and pardon are 
less necessary. Happy the nation in which they will be considered 
as dangerous ! Clemency, which has often been deemed a suffi- 
cient substitute for every other virtue in sovereigns, should be 
excluded in a perfect legislation where punishments are mild, and 
the proceedings in criminal cases regular and expeditious. This 
truth may seem cruel to those who live in countries where, from the 
absurdity of the laws and the severity of punishments, pardons and 
the clemency of the prince are necessary. It is, indeed, one of the 
noblest prerogatives of the throne ; but at the same time a tacit 
disapprobation of the laws. Clemency is a virtue which belongs 
to the legislator, and not to the executor of the laws ; a virtue 
which ought to shine in the code, and not in private judgment. 
To show mankind that crimes are sometimes pardoned, and that 
punishment is not a necessary consequence, is to nourish the flat- 
tering hope of impunity, and is the cause of their considering every 
punishment inflicted as an act of injustice and oppression. The 
prince, in pardoning, gives up the public security in favor of an 
individual, and by ill-judged benevolence proclaims a public act 
of impunity. Let, then, the legislator be tender, indulgent, and 
humane." 

Among the truths of this passage there are some errors, the ex- 
hibition of which will at once lead us to the consideration whether 
the pardoning power, having already been admitted as an ex- 
traordinary and super-legal one, be necessary at all in a well and 
liberally constituted government, or ought to be suffered in a com- 
munity which acknowledges the sovereignty of the law. Beccaria 
says that clemency should be excluded in a perfect legislation, and 
that' pardon is a tacit disapprobation of the law. This is erro- 
neous. No legislation can ever be perfect in the sense in which it 
is taken here, namely, operating in all cases, in the same manner 
toward exactly the same end, for which the legislator has enacted 



1 Cicero in Yerrem 7. 2 Des Lois Penales. 

3 Crimes and Punishments, chap. 46, on Pardons; English Translation, 1807. 



AND SELF-GOVERNMENT. 435 

the law ; because the practical cases to which the laws apply are 
complex, and often involve conflicting laws ; because the legislator, 
though he were the wisest, is but a mortal with a finite mind, who 
cannot foresee every combination of cases ; because the changes of 
society, things, and relations necessarily change the effect produced 
by the same laws ; and because the law-maker cannot otherwise 
than cast the rules of action, which he prescribes, in human lan- 
guage, which of itself is ever but an imperfect approximation to 
that which is to be expressed. 

Laws cannot, in the very nature of things, be made abstract 
mathematical rules ; and so long as we live on this earth, where 
we do not see "face to face," where mind cannot commune with 
mind except through signs which have their inherent imperfections, 
cases must frequently occur in which the strict and formal applica- 
tion of the law operates against essential justice, so that we shall 
actually come to the conclusion that, in a country in which the 
sovereignty of the laws is justly acknowledged, we stand in need 
of a conciliatory power to protect ourselves against a tyranny of 
the law, which would resemble the bed of Procrustes, and would 
sometimes sacrifice essential justice as a bleeding victim at the 
shrine of unconditional and inexorable law itself. It is to these 
cases, among others, that the adage of the jurists themselves ap- 
plies : Summum jus, summa injuria. We take it then for granted 
on all hands, that, justice being the great end of all civil govern- 
ment, and law the means to obtain it, the pardoning power is neces- 
sary in order to protect the citizen against the latter, whenever, 
in the peculiar combination of circumstances, it militates with the 
true end of the state, that is, with justice itself. But it is equally 
true that the supremacy of the law requires that the extraordinary 
power of pardoning be wielded in the spirit of justice, and not 
according to individual bias, personal weakness, arbitrary view, or 
interested consideration ; a truth which is the more important in 
our country, because the same principles which make us bow before 
the law as our supreme earthly ruler, also bring the magistrate so 
near to the level of the citizen that he who is invested with the par- 
doning power is exposed to a variety of influences, individual and 
political, which have a powerful, and often, as practice shows, an 
irresistible effect, although there is no inherent connection between 
them and the cases to which the pardon is applied — influences, 
therefore, which in this respect are arbitrary or accidental. All 



436 ON CIVIL LIBERTY 

arbitrariness, however, is odious to sterling freedom in general, and 
the arbitrary use of the pardoning power and its frequency pro- 
duce the most disastrous consequences in particular. 

It unsettles the general and firm reliance on the law, an abiding 
confidence in its supremacy, and a loyal love of justice. 

It destroys the certainty of punishment, which is one of the most 
important and efficacious elements in the whole punitory scheme; 
and it increases the hope of impunity, already great, in the crimi- 
nally disposed, according to the nature of man and the necessary 
deficiency even of the best contrived penal systems. 

It endangers the community, since it is perfectly true what the 
prince of poets, in his great wisdom, has said : 

Mercy is not itself, that oft looks so ; 
Pardon is still the nurse of second woe. 

It interferes most effectually with the wise objects of reform 
which our penitentiary systems aim at ; for all men, practically ac- 
quainted with their operation, are agreed that reform never fairly 
begins in a convict before he has calmly made up his mind to sub- 
mit to the punishment, and so long as a hope of pardon leads his 
thoughts from the prison-cell to the anticipated enjoyment of 
undue enlargement — a phenomenon easy to be accounted for upon 
psychological grounds. 

It induces large numbers of well-disposed persons, male and 
female, from a superficial feeling of pity, to meddle with cases of 
which they have no 'detailed knowledge, and with a subject the 
grave importance of which has never presented itself to their 
minds. At times it induces persons to seek for pardons on frivo- 
lous grounds, and leads communities to trifle with law, justice, and 
government. 1 

It largely attracts to the community, in which the pardoning 
power is known to be abused, criminals from foreign parts where 
such an abuse does not exist ; it imports crime. 

It makes every sentence, not pardoned, an unjust one ; for, in 



1 At the beginning of 1858 it appeared from certain documents published in 
California, that a petition to- the governor, numerously signed by citizens of Mon- 
terey, to pardon one Jose Anastasia, under the sentence of death, claimed the 
pardon on the ground that Jose was the only fiddler in Monterey that understood 
properly to play for dancing. 



AND SELF-GOVERNMENT. 437 

matters of state, every act should be founded on right and equal 
justice. 1 No one, therefore, has the right, whatever his power may- 
be, to extend a favor to one without extending it to all equally 
situated, and, consequently, equally entitled to the favor. The 
doctrine of Dr. Paley, of " assigning capital punishment to many 
kinds of offences, but inflicting it only upon a few examples of each 
kind," which he actually calls one of the "two methods of admin- 
istering penal justice" amounts to revolting monstrosity if prac- 
tically viewed, and to an absurdity in a philosophical and scientific 
point of view. 

It adds, with the very commonly annexed condition of expatria- 
tion, the flagrant abuse of saddling, in an inhuman, unchristian, 
and unstatesmanlike manner, neighboring communities with crime, 
to which the people whose sacred and bounden duty it was to 
punish it were too weak and negligent to mete out its proper 
reward. 2 

And it places an arbitrary power in the hands of a single indi- 
vidual, or several individuals, in states where all arbitrary power is 
disclaimed, and allows them by one irresponsible act to defeat the 
ends of toilsome, costly, and well-devised justice and legislation, 
putting the very objects of civil government to naught. 

We do not theorize on this subject. All the disastrous effects 
of the abuse of the pardoning power, whether inherent in the 
power itself, when unlimited by proper restrictions, or arising out 
of a state of things peculiar to ourselves, have shown themselves 
among us in an alarming degree, and are in many parts of the 
country on the increase. 

For the proof of this evil state of things we appeal to every one 
in our whole country who has made penal matters the subject of 



1 Lord Mansfield is reported justly to have remarked to George III., who 
wished to save the Rev. Dr. Dodd from the gallows, to which he had been sen- 
tenced for forgery : " If Dr. Dodd does not suffer the just sentence of the law, 
the Perreaus may be said to have been murdered." Holliclay's Life of Lord 
Mansfield, London, 1797, p. 149. The Perreaus were apothecaries of very 
high standing, but had been hanged for forgery, in spite of the most weighty 
petitions. 

2 This unhallowed abuse has been raised into a law by Sir George Grey's 
Expatriation Law, passed in 1847, according to which convicts who behave 
well shall be pardoned after the lapse of two-thirds of the imprisonment to 
which they had been originally sentenced, pi-ovided they will leave the country. 



438 ON CIVIL LIBERTY 

earnest inquiry; we appeal to the fact that, for a long series of 
years, the official reports of persons connected with prisons and 
penitentiaries, and of legislative committees, have teemed with 
complaints of the mischievous effects of the pardoning power ; we 
appeal to the daily papers, near and far, and to recent occurrences 
in one of our most prominent states, where pardons have been 
granted to blood-stained criminals of the most dangerous, perse- 
vering, and resolute sort, without even the least indication of their 
reform, after a short time of imprisonment, which had already 
been substituted for capital punishment ; we appeal to the statistics, 
whenever they have been collected, from official documents, on 
this melancholy subject ; and, lastly, we appeal to the presentments 
of grand juries in several states of our Union, in which the fre- 
quency of pardons under some governors has been called by the 
severe yet merited name of nuisance. 

So long ago as the year 1832, Messrs. de Beaumont and de 
Tocqueville showed, in their work on the penitentiary system in 
the United States, 1 by documents and statistical tables, the fright- 
ful abuse of the pardoning power in the United States in general, 
and the additional abuse, naturally resulting from the circum- 
stances, that pardon is more liberally extended to those convicts 
who are sentenced to a long period of imprisonment, or for life, 
than to less criminal persons. We refer especially to the 2d part 
of the 1 6th note of the appendix, page 232 of the translation. We 
are aware that in some, perhaps in many, states of the Union, the 
pardoning power has been used more sparingly since that time; 
but it will be observed that there is no security against a return to 
the former state of things ; nor is the effect of pardoning, when it 
is rare, yet abused in a few glaring cases, which attract universal 
notice, less injurious ; for instance, when the member of a wealthy 
or distinguished family is pardoned, although guilty of a well- 
proven heinous crime, or when men are pardoned on political 
grounds, although they have committed infamous and revolting 
offences. Such cases have a peculiar tendency to loosen the neces> 
sary bonds of a law-abiding and law-relying community, which 
has nothing else, and is proud of having nothing else, to rely upon 
than the law. 

Many years ago Mr. M. Carey said, in his Thoughts on Peniten- 



Translated, with many additions, by Francis Lieber, Philadelphia, 1833. 



AND SELF-GOVERNMENT. 



439 



tiaries and Prisons : "The New York committee ascertained that 
there are men who make a regular trade of procuring pardons for 
convicts, by which they support' themselves. They exert them- 
selves to obtain signatures to recommendations to the executive 
authority to extend pardon to those by whom they are employed. 
And in this iniquitous traffic they are generally successful, through 
the facility with which respectable citizens lend their names, with- 
out any knowledge of the merits or demerits of the parties. Few 
men have the moral courage necessary to refuse their signatures 
when applied to by* persons apparently decent and respectable, and 
few governors have the fortitude to refuse." 

To this statement we have now to add the still more appalling 
fact, which we would pass over in silence if our duty permitted it, 
that but a short time ago the governor of a large state — a state 
amongst the foremost in prison discipline — was openly and widely 
accused of having taken money for his pardons. We have it not 
in our power to say whether this be true or not ■ but it is obvious 
that a state of things which allows suspicions and charges so de- 
grading and so ruinous to a healthy condition of public opinion, 
ought not to be suffered. 1 It shows that leaving the pardoning 
privilege, uncontrolled in any way, to a single individual, is con- 
trary to a substantial government of law, and hostile to a sound 
commonwealth. 2 

A very interesting paper, relating to the subject of pardon, was 
furnished in the year 1846 by the secretary of state of Massa- 
chusetts, and published by the house of representatives of that 
commonwealth. The paper is, of itself, of much interest to every 



1 While these sheets are passing through the press, the papers report that the 
governor of a large state has pardoned thirty criminals, among whom were some 
of the worst character, at one stroke, on leaving the gubernatorial chair. What 
a legacy to the people ! Lord Brougham said that the only aim of counsel for 
the prisoner was to get him clear, no matter what the consequences might be. 
If all the lawyers acted on this saying, and all the executives as the mentioned 
governor, Justice might as well shut up her halls, and the people save the ex- 
penses which they incur for the administration of justice. It is paying too dear 
for a farce, which is not even entertaining. 

2 In some of the worst governments, as those of Charles II., James II., and 
Louis XV., pardons were sold, but not by the pardoning ruler. It was the mis- 
tresses and courtiers who carried on the infamous traffic, though the monarchs 
knew about it. 



440 



ON CIVIL LIBERTY 



penologist ; but, when we consider that Massachusetts justly ranks 
amongst the best governed states of our Union, its value is much 
enhanced ; for we may fairly suppose that the abuse of the pardon- 
ing power exists in many of the other states in no less a degree. 
In many, indeed, we actually know it to exist in a far greater and 
more appalling degree. 

From this document, 1 we have arrived at the following results : 

There were imprisoned in the state of Massachusetts, from the 
year 1807, inclusive, to the month of February, 1847, in the state 
prisons, convicted, 3850. 

Of these were pardoned, before the term of imprisonment ex- 
pired, 460. So that of the whole were pardoned 12 per cent., or 
every eighth convict. 

The average time of remaining in prison (of these 460,) com- 
pared to the time of their original sentence, amounted to 65 per 
cent. In other words, they remained in prison but two-thirds of 
the time of imprisonment imposed upon them by the law of the 
state. 

Of the 460 pardoned convicts, there had been originally sen- 
tenced to the imprisonment of ten years, or more, the number of 
49. And the time which these convicts had actually remained in 
prison, compared to the terms of their original conviction, amounts 
to 60 per cent. ; so that a criminal sentenced to ten years, or more, 
had a better chance of having his imprisonment shortened, than 
those sentenced to a period less than ten years, in the proportion 
of about six to seven — in other words, while the less guilty was 
suffering a week's imprisonment, the prisoners of the darkest dye 
suffered six days only. 

There were committed for life, by commutation of sentence, and 
still further pardoned at a later period, from 1815 to 1844 inclusive, 
seventy-five. The average time they actually remained in prison 
was a fraction over seven years. So that, if we take twenty-five 
years as the average time of a sentence of imprisonment for life, 
we find that they remained in prison but little over one-fourth of 
the time which had been allotted to them, in consequence of a first 
pardon, (twenty-five per cent.,) or the executive substituted seven 
years' imprisonment for death decreed by law. There were alto- 
gether, committed for life by commutation of sentence, fifteen. 



1 House of Representatives, of Massachusetts, 1846, No. 63. 



AND SELF-GOVERNMENT. 



441 



And, as we have seen that five of these were farther pardoned, we 
find that one-third of the whole were pardoned (thirty-three per 
cent.) It does not appear how many criminals were sentenced to 
death, and what proportion thereof had their sentences commuted 
to imprisonment for life. 

The abuse of pardoning in the state of Massachusetts has, how- 
ever, much decreased during the latter part of the period through 
which the mentioned report extends ; for, according to a table 
published in the able and instructive third report of the New 
York Prison Association, 1847, P a g e 4 1 of the report of the Prison 
Discipline Committee, we find that from 1835 t0 I ^4^ there was 
pardoned in Massachusetts one convict of 1,804; while our state- 
ment shows that in the period from 1807 to 1846 every eighth 
convict was pardoned. 

We beg leave to copy the chief result of the table just men- 
tioned. 1 



1 While the work was passing through the press, a document, published by the 
Massachusetts convention to amend the state constitution, reached the writer. 
It contains " A List of Pardons, Commutations and Remissions of Sentence, 
granted to Convicts by the Executive of the Commonwealth for the ten years 
including 1843 an( l I 852." Unfortunately, this important paper, which contains 
the names of the persons, sentences, number of years sentenced, number of years 
remitted, and the crimes, does not give any classifications, summings-up, or com- 
parisons with the number of sentences and unremitted punishments. It only ex- 
hibits the following recapitulation for 10 years from 1843 to 1852: 

Full Pardons ......... 36 

Remissions . . . . . . . . 319 

Restorations ......... 103 

Commutations . . . . . . . 35 

Total 483 

This paper will doubtless be made the basis of very instructive statistical cal- 
culations, and it is greatly to be desired that other states would follow. As it is, 
I am incapable of giving at this moment any other information. It would require 
other documents, which I have not about me. My remarks are not intended to 
reflect on the gentleman who has drawn up the paper; for it appears that the 
convention ordered the paper on the 18th of June, and on July 5th it was handed 
in. There was then no time to collect the materials for comparisons such as I 
have alluded to. What is now most important to know is the sum total of what 
sentences for what crimes were chiefly remitted or pardoned ; for what reasons, 
what proportion pardons, &c.,bear to unremitted sentences; for what crimes and 



442 



ON CIVIL LIBERTY 



Table showing the pardons in the following prisons in one or several 
years fro?n 1835 to 1846. 

one convict pardoned of 5.87 convicts. 
20.74 " 



Vermont, one com 


Maine, 


n 


New Hampshire, 


a 


Connecticut, 


a 


Massachusetts, 


it 


Virginia, 


tt 


Maryland, 


tt 


Sing Sing, 


a 


Auburn, 


It 


Eastern Penitentiary, 


a 


Western Penitentiary, 


tt 


Mississippi, 


n 


Kentucky, 


a 


District of Columbia, 


tt 


Ohio, 


it 


Rhode Island, 


it 



4-5 6 


(c 


3 6 -5° 


a 


18.04 


a 


33-3 1 


a 


41.00 


tt 


21.25 


a 


*7-*3 


a 


20.37 


a 


6-43 


a 


10.81 


it 


8.50 


ti 


87.00 


tt 


11. 31 


it 


18.00 


a 



If we take the above list as a fair representation of the whole 
United States, we shall find that one convict of 26.33 * s pardoned. 
But we fear that this would not be very correct ; nor must it be 
believed that any average number fairly represents the average mis- 
chief of the abuse of pardoning. Although there be but very few 
convicts pardoned in a given community, yet incalculable mischief 
may be done by arbitrarily or wickedly pardoning a few prominent 
and deeply-stained criminals, as the average temperature of a place 
may turn out very fair at the end of a year, while, nevertheless, 
a few blasting night-frosts may have ruined the whole crop. 

It ought to be kept in mind that, in all calculations of prob- 
ability, averages must be taken with peculiar caution in all cycles 
of facts in which an exceptionally high or low state of things pro- 
duces effects of its own, differing not only in degree but also in 
kind from the effects which result from the more ordinary state of 
things. In these cases averages indicate very partial truth only, or 



what duration these sentences were inflicted ; of what countries the pardoned, 
&c, convicts were; and what proportion the pardoned, &c, short sentences bear 
to pardoned, &c, long sentences or death. 






AND SELF-GOVERNMENT. 443 

cannot be taken as an index of the desired truth at all. The effects 
of these maxima or minima are not distributive, and being effects 
of a distinct class there are no facts in the opposite direction to 
counteract them. This applies to moral as well as physical aver- 
ages, and before we apply ourselves to averages at all we must dis- 
tinctly know whether the elements we are going to use stand in the 
proper connection with the nature of the result at which we desire 
to arrive. 1 

The abuse then exists, and exists in an alarming degree. How 
is it to be remedied ? 

In trying to answer this question, we would preface that we are 
well aware that, unfortunately, the pardoning power is in almost 
all states of our confederacy determined by their constitutions, 
and cannot be changed without a change of these fundamental 
instruments. The object of the present paper, however, is not to 
propose any political measure. We shall treat the subject as a 
scientific one, and an open question, irrespective of what can or 
may be done in the different states in conformity with existing 
fundamental laws. It is necessary, before all, to know what is the 
most desirable object to be obtained. After this has been done, it 
will be proper for every one concerned to adopt that practical 
course which best meets his own peculiar circumstances, and to 
settle how near his own means allow him to approach the desirable 
end. 

Many vague things have been asserted of the pardoning power 
by writers otherwise distinguished for soundness of thought, because 



1 A few examples may illustrate the truth too often forgotten : No farmer can 
determine the fitness of a given climate for the culture of a certain plant from 
the mean heat of the summer or the mean cold of the winter; for the mean heat 
does not indicate whether the weather is uniform or violently changeable ; the 
mean interest at which money may have been obtainable in the course of the 
year does not indicate the truth, unless we know that it has not been peculiarly 
low at some periods and extraordinarily high at others ; the general criminality 
of a community cannot be calculated from the percentage of crime, unless we 
know that there has not been a peculiarly disturbing cause : for instance, one 
man who has murdered half a dozen of people in a comparatively small com- 
munity; and the mischief produced by pardons cannot be calculated by the 
average percentage alone, if we do not know that among these pardons there 
were not some peculiarly arbitrary or peculiarly hostile to the ends of justice. A 
wholesale pardon may be warranted by the truest principles, and a single 
arbitrary pardon may shock the whole community. 



444 0N CIVIL LIBERTY 

they were unable to rid themselves of certain undefined views and 
feelings concerning princes and crowns. Some have maintained 
that the pardoning privilege can be justified only in the monarchy,' 
because the monarch combines the character of the legislator and 
executive, while Montesquieu wishes to restrict the right to the 
constitutional monarch alone, because he does not himself perform 
the judicial functions. All these opinions appear to us unsubstan- 
tial. There is nothing mysterious, nothing transcendental in the 
pardoning power. The simple question for us is, Why ought it to 
exist? If it ought to exist, who ought to be vested with it? 
What are its abuses, and how may we protect ourselves against 
them ? 

We have already seen that doubtless the pardoning power ought 
to exist : 

That there is no inherent necessity that it ought to exist in the 
executive, or in the executive alone : 

That a wide-spread abuse of the pardoning power exists, and 
has existed at various periods : 

That the abuse of the pardoning power produces calamitous 
effects : 

That the executive in our country is so situated that, in the 
ordinary course of things, it cannot be expected of him that he will 
resist the abuse : 

And that the chief abuse of the pardoning power consists in the 
substitution of an arbitrary use of power or of subjective views 
and individual feelings, for high, broad justice, and the unwaver- 
ing operation of the law, which ought to be freed from all arbitra- 
riness. 

We know, moreover, that all our constitutions, as well as the 
laws of England, actually restrict the pardoning power in some 
cases ; for instance, regarding impeachments, or fines to be paid to 
private parties ; and in most of our states the executive is not in- 
vested with the right of pardoning treason, which can only be done 
by the legislature. 1 In others, again, the governor has no authority 



1 The Constitution of the late French Republic of 1848 has this provision: 

" Art. 55. He (the president of the republic) shall possess the right of pardon, 

but he shall not have the power to exercise the right until after he has taken 

the advice of the council of state. Amnesties shall only be granted by an 

express law. The president of the republic, the ministers, as well as all other 



AND SELF-GOVERNMENT. 445 

to pardon capital punishment before the end of the session of that 
legislature which first meets after the sentence of death has been 
pronounced ; and in other states he has only the power of respiting 
the capitally condemned criminal until the meeting of the legisla- 
ture. It is obvious that no specific reason has induced our legisla- 
tors to give the pardoning power to the executive. It was rather 
left where they happened to find it, or they placed it by analogy, 
and not in consideration of any intrinsic reasons. 1 

If it be true that pardon ought to be granted only in cases in 
which essential justice demands it against the law, or for very spe- 
cific and peculiar reasons — for instance, if a convict, sentenced to 
a short imprisonment, is so feeble in health, that, no proper hos- 
pital existing, the incidental consequences of imprisonment would 
be infinitely severer than the law intended the punishment to be, 2 



persons condemned by the high court of justice, can only be pardoned by the 
national assembly." 

I do not consider it desirable that the pardoning power be given or imposed 
upon a political body already existing for other purposes, as in this case to the 
council of state ; but I have cited this provision to show that the French at that 
time did not consider the limitation of the pardoning power in the executive 
unfavorable to popular liberty. 

1 A remarkable proof of this fact seems to have been afforded by the late con- 
stituent assembly of the state of New York ; for, so far as we are aware, there 
was no debate on the question whether the pardoning power ought to be left 
uncontrolled in the hands of the executive. We can very well imagine that, 
after a discussion of this subject, a majority might have decided, erroneously in 
our opinion, that the pardoning privilege ought to remain where it was ; but we 
cannot imagine that a large number of men could have possibly been from the 
beginning so unanimous upon so important a subject, that not even a discussion 
was elicited, had the pardoning been made a subject of any reflection at all. 
This is impossible in the nature of things. Men will differ in opinion upon 
almost any point, and would certainly have differed upon so weighty and delicate 
a subject, had their minds been directed to it. 

2 We certainly think that ill health, threatening disastrous consequences, should 
form a ground of release in cases of comparatively short sentences, if no good 
prison hospital exists. But, even where no hospital exists (which is undoubtedly 
a great deficiency), much caution must be exercised. An experienced and highly 
respectable prison physician in Massachusetts stated in his report, some years 
ago, that pardons on account of deficient health had a tendency to increase sick- 
ness in the prison, because many prisoners will seriously and perseveringly injure 
their health in the hope of obtaining thereby a pai"don. A prison ought to have 
a hospital, and if, in spite of a good hospital, the consciousness of being impris- 



446 ON CIVIL LIBERTY 

(and is not this also a case of essential justice against the law ?) — 
or because strong suspicions of innocence have arisen after the 
trial, it is equally clear that pardon ought to be granted after due 
investigation only, and that this investigation ought to be insured 
by law. 

The pardoning power might be transferred from the executive to 
the legislature, or to an assembly of judges. We are emphatically 
averse to either measure. The legislature is composed of members 
elected to represent a variety of interests and views, all of which 
ought to have a proportionate weight in the formation of laws ; but 
neither the reasons why nor the objects for which legislators are 
elected have any connection with deciding upon a question of par- 
don. If the decision were left at once to the whole assembly, it 
would be impossible to give that degree of attentive examination 
to the details of each case which its nature requires, and a party 
feeling would frequently warp a decision which could be justified 
only on the ground of the highest and of essential justice. If the 
case were first given to a committee (as we may imagine a standing 
committee of pardon), and the legislature were regularly to follow 
the decision of the committee, the latter step is useless ; if the 
legislature, however, were not to follow implicitly this decision, we 
have the incongruities just indicated. As to the forming a board 
of pardon of judges alone, ' we think the case would be equally 
incongruous. The business of the judge, his duty, and his habit 
of thinking, are strictly to apply the law. He is a valuable magis- 
trate only so long as he is a faithful organ of the established law ; 
but, in the case of pardon, the object is neither to make nor to 
apply a law, but to defeat its operation in a given and peculiar 
case. 



oned has of itself any bad consequences for the imprisoned patient, it must be 
taken as one of the many incidental but unavoidable consequences of all impris- 
onment. There are more serious consequences than this, which we are, never- 
theless, unable to separate from punishment. Punishment ought always to be 
individual, and to strike no one but the evil-doer: yet there is hardly ever an 
individual punished whose sentence does not at the same time entail moral or 
physical suffering upon others. Men are decreed to constitute societies, with 
concatenated weal and woe, and human judges cannot punish without indirectly 
inflicting suffering upon those who are unconnected with the crime, but con- 
nected with the criminal. If we were absolutely to follow out the first prin- 
ciple, that the offender alone should suffer, we could not punish a single convict. 



AND SELF-GOVERNMENT. 447 

In order to constitute a proper authority, to which the pardon- 
ing privilege can be safely intrusted, we ought to organize it so that 
the following points are well secured : 

That a careful investigation of each. case take place before par- 
don be granted : 

That the authority be sufficiently strong to resist importunity: 

That it contain a sufficient amount of knowledge of the law, its 
bearing, and object: 

That it enjoy the full confidence of the community. 

These great objects, it is believed, can be obtained by a board 
of pardon, consisting of a proper number of members — say nine 
(in the republic of Geneva it consists of this number), with one or 
two judges among them, to be appointed by the legislature, with a 
periodical partial renovation (one-third leaving every three years), 
and with these farther provisions : 

That the board sit at certain portions of the year — say twice : 

That certain and distinct grounds must be stated in every peti- 
tion for pardon ; and that, without them, all petitions, ever so re- 
spectably and numerously signed, be not received : 

That pardon can be granted by the governor only when duly 
recommended by the board ; and must be granted if the board 
recommend it a second time, after the governor has returned the 
recommendation with his reasons against it : 

That no pardon be recommended without advertising in the 
county where the convict has lived previous to his imprisonment, 
and where he has committed his crime, that the board have in view 
to recommend him to pardon, and without giving proper time to 
act upon the advertisement : 

That no pardon be granted without informing, likewise, the 
warden of the prison, or prisons, in which the subject of the in- 
tended pardon is, or has been, incarcerated, of the intention of 
the board : 

That no pardon be granted without previous inquiry of the court 
which has sentenced the convict : 

And that the reasons of the pardon, when granted, be published. 

Without some such guarantees, the pardoning power will always 
be abused. The advertising of the intention of pardoning will 
not be mistaken for an extra-constitutional and illegal call upon 
the county to exercise functions which do not belong to it, and 
ought not to belong to it, as, in reality, the governor of Ohio 



448 ON CIVIL LIBERTY 

(years ago) respited the execution of a criminal guilty of an atro- 
cious murder, informing, at the same time, the people of the 
county whence the criminal came, that he was desirous of knowing 
whether they wished the criminal pardoned or not. 1 

Nor must it be believed that, while we recommend to inform the 
warden of a prisoner that his pardon is contemplated, we are de- 
sirous of countenancing a system of pardon founded upon the good 
conduct of the convicts in the prison. We consider such a measure 
inadmissible, for many reasons. It has been tried in France, on a 
large scale ; and the effect was so bad that its own author obtained 
its abolition, confessing his error. 2 What we desire is, that proper 
information be obtained before a convict be pardoned, and that no 
imposition take place. It frequently happens that a pardon is 
obtained by persons unacquainted with the culprit, and a dangerous 
and infamous man is returned to a community which had the 
deepest interest in seeing the law take its uninterrupted course. 

We think it proper that the executive, thus controlled on the 
one hand, and protected against importunities on the other, form 
a party to the pardon, because the actual release must go through 
his hands. 

We doubt not that, if a board of pardoning were established, in 
a short time a series of fair principles and rules, somewhat like the 
rules of equity, would be settled by practice, and the pardoning 
would be far less exposed. to arbitrary action. 

Totally distinct, however, from the pardoning ought to be kept 
the restitution of a convict, when innocence has been proved after 
conviction. It is a barbarous error to confound acknowledgment 
of wrong committed by society against an individual with the par- 
doning of a guilty person. Nothing can be pardoned where 
nothing is to be pardoned, or where the only pardoner is the con- 
vict. He is entitled to indemnity, and the process ought even to 
be called by a different name and differently to be provided for. 
Not long ago a person sentenced for forgery in England to trans- 
portation for a very long period or for life, we forget which, was 
pardoned after several years' endurance of the sentence, because 
his innocence had been made patent. Some English papers justly 



1 National Gazette, Philadelphia, October 10, 1833. 

2 De la Ville de Mirmont, Observations sur les Maisons Centrales de Deten- 
lion de Paris, 1833, p. 55, and sequ. 



AND SELF-GOVERNMENT. 449 

remarked how incongruous a pardon is in such cases, where, in 
fact, the question is how a great and ruinous wrong committed by 
society against an individual may be repaired in some degree at 
least, and as far as it lies in human power. This is an important 
subject of its own, deserving the most serious attention of all 
civilized states, but does not fall within the province proper of 
pardoning. 

FRANCIS LIEBER. 

I append to this paper, besides the additional notes which the 
reader has seen, the following three items : 

The official reports of the attorney-general of Massachusetts 
show that : 

In 1850, prosecutions of crime cost in that state $66,589 36 

1851, " " " 71,078 18 

1852, " " " 63,900 68 

To this must be added the cost of the courts, detective police, 
rewards, penitentiaries, prison support. 

When we speak of the cost of crime in general, we must not 
only take into account the above items, but also the waste of prop- 
erty by criminals, and the loss of labor, for criminals by profession 
do not work, therefore do not produce. 

•The following extract of a speech by Lord Palmerston, secretary 
for the home department, June 1, 1853, in the commons, is very 
remarkable. C 1 est tout comme chez nous. I do not mean our 
Quakers act thus, but women inconsiderately get up petitions, and 
are joined by busy religionists. Lord Palmerston said : 

" That would be a very great evil, were any change of the law to 
bring it about. But let us see* how the thing would work. Even 
now, in cases of disputed rights of property, although it is gen- 
erally matter of great scruple of conscience to depose to statements 
which are not consistent with truth, yet we frequently see evidence 
brought before courts of law not founded in fact. But in matters 
regarding life and liberty, I am sorry to say that benevolent indi- 
viduals have very little conscience at all. (' Hear /' and laughter. ,) 
You may depend upon it that I have had too much experience of 
the truth of what I have stated. I get applications signed by great 
numbers of most respectable persons in favor of individuals with 
regard to whose guilt there can be no possible doubt, or any doubt 

29 



450 ON CIVIL LIBERTY AND SELF-GOVERNMENT, 

that they have committed the most atrocious crimes. That is a 
matter of every-day occurrence. Not long ago, a member of the 
Society of Friends actually tried to bribe a witness to absent him- 
self from the trial of* a prisoner, in order to screen the man from 
punishment, of whose guilt no human being could doubt. If you 
had these second trials, you would have these pious frauds as fre- 
quently committed." 

Lastly, I would put here a short newspaper paragraph — very 
simple yet very fearful. 

"In the course of an editorial article, intended to show that it 
is the certainty, and not the severity, of punishment which is needed 
for the suppression of crime, the Pittsburg Commercial makes the 
following statement : — * 

"'In fifteen years, during which the annals of crime in this 
county have been stained by more than fifty murders, a single in- 
stance of hanging has been affirmed by the executive as the measure 
of extreme penalty due ; and there justice was cheated of her 
victim by suicide !' " 



National Intelligencer, Washington, July 12, 1853. 



APPENDIX III. 



A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL 
TRIAL AND THE LAWS OF EVIDENCE. 

Few things, in my opinion, show more distinctly the early Eng- 
lish character than the fact that, without vindictiveness or cruelty 
in the national character, the penal law inflicted death with a fear- 
ful disregard of human life, while at the same time the penal trial 
was carried on with great regard for individual rights and for the 
mode of ascertaining the truth. The English were from early times 
a peculiarly jural nation. 

Those people who have the inquisitorial trial, on the other hand, 
were in some instances far less sanguinary in their punishments, 
but perfectly regardless of the trial, or, rather, the trial seemed to 
have been established chiefly for the prosecuting party. It aimed 
at knowing the truth ; the means to arrive at it w£re little cared 
about. The rights of the prosecuted person appeared in a shadowy, 
undefined way. And all this continues to exist in many countries. 

I do not speak here of the worst countries only. I do not mean 
to advert to the Austrian trial, as it was before the late revolutions. 
I refer, for instance, to the German penal trial ; and mean by it 
the penal trial of the countries in which the common German law 
prevails, as well as those where, as in Prussia, a trial by statute law 
is introduced. The late revolutions have changed some items. 
The main ideas, however, remain, in many cases, the same. 

Now, when a person accustomed to a regular and well-guarded 
penal trial reads such works as Feuerbach's Criminal Cases, or any 
detailed description of a penal trial, the laxity and incongruity of 
the procedure strike us among other things with reference to the 
following points : 

i. The inquiring judge, that is, the judge who has been detailed, 
to use a military term, to lead the whole inquiry, and who has been 
day after day with the prisoner, and only one witness, viz. the 
secretary, and whose whole skill has been exerted to bring the pris- 

451 



452 



ON CIVIL LIBERTY 



oner to confession, or to establish the crime, is also frequently the 
first sentencing judge, and always very powerfully influences the 
sentence. If there is a separate sentencing judge, all the "acts," 
that is, all that has been written down, is handed over to him, and 
from them he frames his sentence, upon which the other judges, if 
there are any, vote in plenary session. As a matter of course, they 
cannot know much about the subject, and must be guided by the 
report the sentencing judge makes. 

2. The inquiring judge is, in many cases, what we would con- 
sider wholly unrestricted. He takes hearsay evidence, and all sorts 
of evidence, if he thinks proper. He is unrestricted as to time, 
and an accused person may be kept for years under trial. He is 
allowed to resort to all kinds of tricks, in order to work upon the 
imagination of the prisoner; for instance, calling him up at mid- 
night, examining him and suddenly showing a skull to him. Every 
worthy and puerile motive to speak the truth and confess the 
offence is resorted to. 

3. There is no regular indictment, nor does the accused know in 
his examinations what is charged against him ; at least the law does 
not 'demand that he shall know it. 

4. The prisoner is constantly urged to confess ; the whole trial 
assumes the act charged against the prisoner, and treats him accord- 
ingly. Indeed it may be said that, although not avowedly, yet 
virtually, the inquisitorial trial assumes in a very great degree the 
character of an accusation which the accused has to disprove, not 
one which the accuser is bound to prove. In some countries and 
in certain cases this is positively the case. Even the French penal 
trial is by no means wholly free from this serious fault. 

5. There is no physical torture resorted to in order "to bring 
out" the truth, since the positive abolition of the torture, but the 
moral torture which is applied is immense, and the judge is author- 
ized by law to punish with lashes or other physical means every 
contradiction or lie proved from the convict's own statements. 
That this can easily lead to all sorts of abuses is obvious. 

6. There is no cross-examination of witnesses, and no stringent 
law to compel witnesses in favor of the prisoner to appear before 
the court. 

7. Court and police frightfully mingle in their functions, in the 
first stages of the trial. 

8. There is a most sorrowful defence, cautious, fearful of offend- 



AND SELF-GOVERNMENT. 



453 



ing the judges upon whom the promotion of the defensor depends, 
and empowered to procure that certain points be further cleared up 
only through the court, which is the prosecuting party. Besides, 
the defence only begins when the whole investigation by the court 
is at an end, that is to say, all the ''acts" are handed over to the 
defensor. He studies them and writes the defence, which is given 
along with the "acts" to the sentencing judge. 

No wonder that the Germans universally called for a total change 
of such a trial, and, as I stated before, some very important changes 
have taken place. 

The chief incongruity in this inquisitorial trial, however, is that 
it admits of half proofs, two of which amount to a whole proof, 
with other logical flagrancies, as well as the legal flagrancy of "de- 
ficient proof," according to which a lighter punishment, but still a 
punishment, is inflicted. 

It is hardly conceivable how an intelligent nation, advanced in 
the sciences, can have continued a logical absurdity of such crying 
character until the most recent times, and can continue it, in some 
parts of the country, to this day. It is reversing the order of 
things, and substituting evidence, the means of arriving at the fact, 
which is the thing to determine the punishment, for the criminal 
fact. 

The principle from which we start in penal law is, that crime 
ought to be followed by evil, as a consequence of the crime. If 
crimes punished themselves, we should not want judges ; if judges 
were omniscient, we should not want trials. The object of the 
trial is to prove that a crime has been committed, and that it has 
been committed by the indicted person. This is called establish- 
ing the fact, which means proving it — reproducing it, as it were, 
before the eyes of the judge ; in one word, convincing him of the 
truth of the charge, or fact ; and it is the fact alone that can be 
punishable. But the idea of a fact does not admit of degrees. 
There may, indeed, be every possible degree of belief in a judge, 
from the first suspicion, from surmise, doubt, and belief, to the 
fullest conviction ; but, if he metes out his punishments accordingly, 
he does not punish for facts done by others, but according to the 
degree of belief in himself. He substitutes his own subjective be- 
lief for the objective fact. Now, there cannot be half facts, or 
three-fourths of facts. A man may, indeed, buy poison, to commit 
murder; he may add to this, the mixing of the poison with a soup; 



454 0N CIVIL LIBERTY 

he may add to this, the carrying of the soup to the sick-room ; and 
he may add to this again, the presenting of the soup to a patient, 
who finally consumes it ; but all these successive acts are not parts 
of facts. Wherever the evil-minded man stopped, it was a fact; 
and, if it is punished, it is not punished as part of a crime, but 
the inchoate crime is a whole penal fact, and, as such, punished. 
Again, though four persons may, as witnesses, establish a fact, a 
truth, each witness does not prove, on that account, a fourth of the 
truth, which, like the fact, is one and indivisible. If they prove a 
chain which ultimately establishes a fact, they still prove but one 
fact, and each one proves for himself a whole truth, which, in con- 
nection with the other truths, establishes the ultimate truth. 

If four not very creditable witnesses establish one fact, when 
I would not have believed either of them singly, because, in the 
assumed case, they corroborate one another, when no connivance 
can have taken place, they are in this case good witnesses, each 
one for himself, and not four witnesses, each one worth a fourth of 
a good witness. A thousand liars cannot, as liars, establish a truth, 
but they may testify under circumstances which deprive them of 
the character of liars, and thus be in the case good witnesses. 

It is true, indeed, that man, conscious of his fallibility, and re- 
solved severely to punish certain crimes, has laid down the rule 
that, to prove certain crimes in such a manner that the law shall 
consider them as proved, an amount of testimony shall be neces- 
sary which is not required for lighter offences. But this is only as 
a safeguard, so as to prevent, as far as in us lies, the unjust infliction 
of severe punishment. It has nothing to do with parts of truths, 
or parts of facts. It has nothing to do with logic. In barbarous 
times, however, it was actually conceived that logic itself is of 
a sliding character, as it were. The Ripuarian laws demanded 
seventy-two compurgators to absolve an incendiary, or murderer 
(Leg. Ripuar., cap. vi., vii., and xi.). Here, the first error was to 
consider the accused as tainted, who must clear himself, and not 
as an accused person, upon whom the deed must, be proved. The 
second error was that the number of compurgators must rise to clear 
the tainted person, according to the taint (which, as yet, is nothing 
but accusation). The Koran prescribes, in certain cases, a number 
of oaths — as though each oath, even of a person unworthy of belief, 
contained some truth, which, by repetition, could be accumulated, 
and ultimately form a whole truth. Not quite dissimilar is what 



AND SELF-GOVERNMENT. 455 

we read in Gregory of Tours'. When the chastity of a certain 
queen of France was suspected, .three hundred knights swore, with- 
out hesitation, that the infant prince was truly begotten by her de- 
ceased husband. As if the oath of three hundred knights could 
have any weight, when none of them could know the fact. But, if 
people once fall into the error of demanding the proof of the 
negative to establish innocence, instead of demanding the proof 
positive of the charge, they must necessarily fall into all sorts 
of errors. The ecclesiastical law required, in a similar manner, or 
still requires, seventy witnesses to prove incontinency on a car- 
dinal; and in Spain, as Chancellor Livingston tells us, it required 
more witnesses to convict a nobleman than a commoner. This 
is pretty much the same logic which, as Captain Wilkes tells us, 
induces the Fijians to put more powder into the gun if they fire at 
a large man. 

On the other hand, the idea of punishing according to the de- 
gree of conviction in the judge, namely, lightly if light suspicion 
only has been existing, more severely if belief has been created, 
and so on, would not have been wholly inconsistent in ancient 
times, when men had not yet succeeded in strictly separating the 
moral law from the law of nature, and when the punishment was 
considered as a sort of extinction of guilt — a neutralizing agent. 
This is a theory which actually some modern criminalists of promi- 
nence have endeavored to revive. According to them, the fact, not 
the deed, is punished — society has to wipe off the criminal fact 
which has occurred, and the punishment is like the minus put 
against the plus. But Aristotle already said, even the gods cannot 
make undone what has been done. The punishment would resem- 
ble the penitence which in early times kings had to undergo for 
great national calamities. If this unphilosophical view were true, 
it would be difficult to show why the criminal, who has committed 
the deed, is the one selected to re-establish the equilibrium or for 
the atonement. But the common sense of mankind has been in 
this case, as in a thousand others, sounder than theories of unprac- 
tical thinkers. 

The judge who punishes half, because the evidence has sufficed to 
create half a conviction only, commits the same logical fault which 
a navigator would commit who has seen but dimly something that 
may be a rock, and would go but half out of the way of the danger. 



456 ON CIVIL LIBERTY 

I say he commits the same logical fault, although the effects would 
be the reverse. 

Punishment", which is the intentional infliction of some suffer- 
ance as deserved sufferance (in which it differs from the infliction 
of pain by the surgeon), requires the establishment of the deed, 
and this is absolute. The various degrees of belief in the deed are 
only in the judge, not in the deed. The deed must determine 
the different degrees of infliction of pain or privation ; all else is 
illogical. 

If the reader has thought that I have dwelt too long on this 
topic, he must remember that millions are to this day subject to 
such legal logic as has been described. 

It will be hardly necessary to refer in this place to the fact, that 
although the ascertainment of truth is the main object of the trial, 
it is not on that account allowed to resort to all and every means 
which may bring about this end. Sound sense and a due regard 
to the rights of individuals lead men to the conviction that a fixed 
law of evidence is necessary, and to prescribe rules according to 
which courts shall believe facts to be established, discarding all 
those means which may expose the accused to cruelty, which may 
be easily abused, which in turn may deceive, and whose effects in 
general would be worse than the good obtained. Truth, estab- 
lished according to those rules, is called legal truth. There can be 
but one truth, that is the conviction agreeing with fact, but truth 
may be established by various means, or by means agreeing with 
prescribed rules. There may be one witness who testifies that he 
has seen a man doing that, which, before the court can punish it, 
requires two witnesses. The judge may be thoroughly convinced 
that the witness speaks the truth ; yet the truth would not be legally 
established — it would not be a legal truth. This, too, may appear 
unworthy of mention ; but only to those who do not know how 
vehemently all persons hostile to liberty declaim against the dead 
letter of the law, the hollow formalism of the Anglican trial, and 
how anxious they are to substitute the subjective opinion of the 
judge for the positive and well-defined law. I may put it down 
here as a fact of historical interest that even so late as my early 
days I heard a criminalist of some distinction regret the abolition 
of " the question," i.e. the torture, and I speak gravely when I say 
that, as times go, I should not be surprised if the re-establishment 



AND SELF-GOVERNMENT. 457 

of the torture should once more be called for in some countries. 
Indeed, has the torture not been used? Mr. Gladstone's pamphlet 
on Neapolitan affairs tells us strange things. 1 



1 It would seem that the torture actually continues to exist in some parts of 
Europe. The following is taken from the London Spectator, of December 22d, 
1849, which gives as its authority the well-known Allgemeine Zeitung, published 
at Augsburg, and, consequently, not far from Switzerland. 

"A strange circumstance, says the Allgemeine Zeitung, has just taken place 
at Herisau, the capital of Inner Appenzell, in Switzerland, showing how much, 
in these countries of old liberties, civilization is behindhand in some matters. A 
young girl of nineteen, some months back, assassinated her rival. Her lover 
was arrested with her, and, as she accused him of the crime, both were put to 
the torture. The girl yielded to the pain, and confessed her crime ; the young 
man held firm in his denial : the former was condemned to death, and on the 
7th of this month was decapitated with the sword, in the market-place of 
Herisau. This fact is itself a startling one, but the details are just as strange. 
For two hours the woman was able to struggle against four individuals charged 
with the execution. After the first hour the strength of the woman was still so 
great that the men were obliged to desist ; the authorities were then consulted, 
but they declared that justice ought to follow its course. The struggle then re- 
commenced, with greater intensity, and despair seemed to have redoubled the 
woman's force. At the end of another hour she was at last bound by the hair to 
a stake, and the sword of the executioner then carried the sentence into effect." 

The author has touched upon the fact that, in our country, the abolition of 
trial by jury has been proposed, in the note appended to page 233. The topic 
is one of vital importance to our entire system of government and political 
existence. It is for this reason that he does not hesitate to direct the earnest 
student of law, and of government, to a German work of high merit — Mr. Mit- 
termaier's Legislation and Practice, with Reference to the Penal Trial, accord- 
ing to their Recent Development; Erlangen, 1856. The author had not become 
acquainted with this important work when the page referred to was printing ; 
but the testimony given by the great criminalist, of the satisfactory results de- 
rived from trial by jury, even in countries where it has been recently established, 
has induced the author to append this note here, rather than leave his readers 
unacquainted with evidence of such weight in favor of so great an institution, 
considered by almost all friends of liberty as one of the substantial acquisitions 
obtained by our progressive race. 



APPENDIX IV. 

MAGNA CHARTA OF KING JOHN, 

fifteenth day of june, in the seventeenth year of the 
king's reign, a.d. i 215. 

John, by the grace of God king of England, lord of Ireland, 
duke of Normandy and Aquitain, and earl of Anjou: to the arch- 
bishops, bishops, abbots, earls, barons, justiciaries of the forests, 
sheriffs, governors, officers, and to all bailiffs and other of his faith- 
ful subjects, greeting. Know ye, that we, in the presence of God, 
and for the health of our soul, and of the souls of our ancestors 
and heirs, and to the honor of God and the exaltation of holy 
church, and amendment of our kingdom, by advice of our venera- 
ble fathers, Stephen, archbishop of Canterbury, primate of all 
England and cardinal of the holy Roman church ; Henry, arch- 
bishop of Dublin, William, bishop of London, Peter, of Winchester, 
Jocelin, of Bath and Glastonbury, Hugh, of Lincoln, Walter, of 
Worcester, William, of Coventry, Benedict, of Rochester, bishops ; 
and master Pandulph, the pope's subdeacon and ancient servant, 
brother Aymerick, master of the temple in England, and the noble 
persons, William Marescall, earl of Pembroke, William, earl of 
Salisbury, W T illiam, earl of Warren, William, earl of Arundel, Alan 
de Galoway, constable of Scotland, Warin Fitz Gerald, Peter Fitz 
Herbert, and Hubert de Burghe, senechal of Poictou, Hugo de 
Nevill, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip 
de Albine, Robert de Roppele, John Marescall, John Fitz Hugh, 
and others our liegemen ; have, in the first place, granted to God, 
and by this our present charter confirmed for us and our heirs 
forever : 

I. That the church of England shall be free, and enjoy her whole 
rights and liberties inviolable. And we will have them- so to be 
observed ; which appears from hence that the freedom of elections, 
458 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 459 

which was reckoned most necessary for the church of England, of 
our own free will and pleasure we have granted and confirmed by 
our charter, and obtained the confirmation of from Pope Innocent 
the Third, before the discord between us and our barons : which 
charter we shall observe, and do will it to be faithfully observed by 
our heirs forever. 

II. We have also granted to all the freemen of our kingdom, for 
us and our heirs forever, all the underwritten liberties, to have and 
to hold to them and their heirs, of us and our heirs. 

III. If any of our earls, or barons, or others who hold of us in 
chief, by military service, shall die, and at the time of his death his 
heir shall be of full age, and owe a relief, he shall have his inherit- 
ance by the ancient relief; that is to say, the heir or heirs of an 
earl, for a whole earl's barony, by a hundred pounds; the heir or 
heirs of a baron, for a whole barony, by a hundred pounds; the 
heir or heirs of a knight, for a whole knight's fee, by a hundred 
shillings at most; and he that oweth less shall give less, according 
to the ancient custom of fees. 

IV. But if the heir of any such shall be under age, and shall be 
in ward, when he comes of age he shall have his inheritance with- 
out relief or without fine. 

V. The warden of the land of such heir, who shall be under age, 
shall take of the land of such heir only reasonable issues, reason- 
able customs, and reasonable services; and that without destruction 
or waste of the men or things; and if we shall commit the guardian- 
ship of those lands to the sheriff, or any other who is answerable to 
us for the issues of the land, and if he shall make destruction and 
waste upon the ward lands, we will compel him to give satisfaction, 
and the land shall be committed to two lawful and discreet tenants 
of that fee, who shall be answerable for the issues to us, or to him 
whom we shall assign. And if we shall give or sell the wardship 
of any such lands to any one, and he makes destruction or waste 
upon them, he shall lose the wardship, which shall be committed 
to two lawful and discreet tenants of that fee, who shall in like 
manner be answerable to us, as hath been said. 

VI. But the warden, so long as he shall have the wardship of 
the land, shall keep up and maintain the houses, parks, warrens, 
ponds, mills and other things pertaining to the land, out of the 
issues of the same land ; and shall restore to the heir, when he 
comes of full age, his whole land stocked with ploughs and car- 



460 ON CIVIL LIBERTY 

riages, according as the time of wainage shall require, and the 
.issues of the land can reasonably bear. 

VII. Heirs shall be. married without disparagement, so as that 
before matrimony shall be contracted those who are nearest to the 
heir in blood shall be made acquainted with it. 

VIII. A widow, after the death of her husband, shall forthwith, 
and without any difficulty, have her marriage and her inheritance ; 
nor shall she give anything for her dower or her marriage, or her 
inheritance, which her husband and she held at the day of his death; 
and she may remain in the capital messuage or mansion house of 
her husband, forty days after his death, within which term her dower 
shall be assigned. 

IX. No widow shall be distrained to marry herself, so long as she 
has a mind to live without a husband. But yet she shall give 
security that she will not marry without our assent, if she holds of 
us, or without the consent of the lord of whom she holds, if she 
holds of another. 

X. Neither we nor our bailiffs shall seize any land or rent for 
any debt, so long as there shall be chattels of the debtor's upon 
the premises, sufficient to pay the debt. Nor shall the sureties of 
the debtor be distrained, so long as the principal debtor is sufficient 
for the payment of the debt. 

XI. And if the principal debtor fail in the payment of the debt, 
not having wherewithal to discharge it, then the sureties shall 
answer the debt ; and if they will, they shall have the lands and 
rents of the debtor, until they shall be satisfied for the debt which 
they paid him ; unless the principal debtor can show himself ac- 
quitted thereof, against the said sureties. 

XII. If any one have borrowed anything of the Jews, more or 
less, and dies before the debt be satisfied, there shall be no interest 
paid for that debt, so long as the heir is under age, of whomsoever 
he may hold. And if the debt falls into our hands, we will take 
only the chattel mentioned in the charter or instrument. 

XIII. And if any one shall die indebted to the Jews, his wife 
shall have her dower, and pay nothing of that debt ; and if the 
deceased left children under age, they shall have necessaries pro- 
vided for them according to the tenement (or real estate) of the 
deceased ; and out of the residue the debt shall be paid ; saving, 
however, the service of the lords. In like manner let it be with 
debts due to other persons than the Jews. 



AND SELF-GOVERNMENT. 461 

XIV. No scutage or aid shall be imposed in our kingdom, unless 
by the common council of our kingdom, except to redeem our per- 
son, and make our eldest son a knight, and once to marry our 
eldest daughter ; and for this there shall only be paid a reasonable 
aid. 

XV. In like manner it shall be concerning the aids of the city 
of London ; and the city of London shall have all its ancient 
liberties and free customs, as well by land as by water. 

XVI. Furthermore, we will and grant that all other cities, and 
boroughs, and towns, and ports, shall have all their liberties and 
free customs ; and shall have the common council of the kingdom, 
concerning the assessment of their aids, except in the three cases 
aforesaid. 

XVII. And for the assessing of scutages we shall cause to be 
summoned the archbishops, bishops, abbots, earls, and great barons 
of the realm, singly by our letters. 

XVIII. And furthermore we shall cause to be summoned in 
general by our sheriffs and bailiffs, all others who hold of us in 
chief, at a certain day, that is to say, forty days before the meeting, 
at least, to a certain place ; and in all letters of such summons we 
will declare the cause of the summons. 

XIX. And summons being thus made, the business shall proceed 
on the day appointed, according to the advice of such as shall be 
present, although all that were summoned come not. 

XX. We will not for the future grant to any one, that he may 
take aid from his own free tenants, unless to redeem his body, and 
to make his eldest son a knight and once to marry his eldest 
daughter ; and for this there shall only be paid a reasonable aid. 

XXI. No man shall be distrained to perform more service for a 
knight's fee, or other free tenement, than is due from thence. 

XXII. Common pleas shall not follow our court, but shall be 
holden in some certain place. Tryals upon the writs of novel dis- 
seisin, and of mort d'ancestor, and of darreine presentment, shall 
be taken but in their proper counties, and after this manner : We, 
or if we should be out of the realm, our chief justiciary, shall send 
two justiciaries through every county four times a year; who with 
the four knights chosen out of every shire by the people, shall hold 
the said assizes in the county, on the day and at the place appointed. 

XXIII. And if any matters cannot be determined on the day 
appointed to hold the assizes in each county, so many of the 



462 ON CIVIL LIBERTY 

knights and freeholders as have been at the assizes aforesaid shall 
be appointed to decide them, as is necessary, according as there is 
more or less business. 

XXIV. A freeman shall not be amerced for a small fault, but 
according to the degree of the fault ; and for a great crime in pro- 
portion to the heinousness of it ; saving to him his contenement, 
and after the same manner a merchant, saving to him his mer- 
chandise. 

XXV. And a villain shall be amerced after the same manner, 
saving to him his wainage, if he falls under our mercy ; and none 
of the aforesaid amerciaments shall be assessed but by the oath of 
honest men of the neighborhood. 

XXVI. Earls and barons shall not be amerced but by their peers, 
and according to the quality of the offence. 

XXVII. No ecclesiastical person shall be amerced, but accord- 
ing to the proportion aforesaid, and not according to the value of 
his ecclesiastical benefice. 

XXVIII. Neither a town or any person, shall be distrained to 
make bridges over rivers, unless that anciently and of right they 
are bound to do it. 

XXIX. No sheriff, constable, coroners, or other our bailiffs, 
shall hold pleas of the crown. 

XXX. All counties, hundreds, wapentakes and trethings shall 
stand at the old ferm, without any increase, except in our demesne 
lands. 

XXXI. If any one that holds of us a lay fee dies, and the sheriff 
or our bailiff show our letters patents of summons concerning the 
debt due to us from the deceased, it shall be lawful for the sheriff 
or our bailiff to attach and register the chattels of the deceased 
found upon his lay fee, to the value of the debt, by the view of 
lawful men, so as nothing be removed until our whole debt be 
paid ; and the rest shall be left to the executors to fulfil the will of 
the deceased ; and if there be nothing due from him to us, all the 
chattels shall remain to the deceased, saving to his wife and chil- 
dren their reasonable shares. 

XXXII. If any freeman dies intestate, his chattels shall be dis- 
tributed by the hands of his nearest relations and friends, by the 
view of the church, saving to every one his debts which the de- 
ceased owed. 

XXXIII. No constable or bailiff of ours shall take corn or other 



AND SELF-GOVERNMENT. 463 

chattels of any man, unless he presently gives him money for it, 
or hath respite of payment from the seller. 

XXXIV. No constable shall distrain any knight to give money 
for castle guard, if he himself shall do it in his own person, or by 
another able man, in case he shall be hindered by any reasonable 
cause. 

XXXV. And if we shall lead him, or if we shall send him into 
the army, he shall be free from castle guard for the time he shall 
be in the army by our command. 

XXXVI. No sheriff or bailiff of ours, or any other, shall take 
horses or carts of any for carriage. 

XXXVII. Neither shall we, or our officers, or others, take any 
man's timber for our castles, or other uses, unless by the consent 
of the owner of the timber. 

XXXVIII. We will retain the lands of those that are convicted 
of felony but one year and a day, and then they shall be delivered 
to the lord of the fee. 

XXXIX. All wears for the time to come shall be demolished in 
the rivers of Thames and Medway, and throughout all England, 
except upon the sea-coast. 

XL. The writ which is called praecipe shall not for the future be 
granted to any one of any tenement whereby a free man may lose 
his cause. 

XLI. There shall be one measure of wine and one of ale through 
our whole realm, and one measure of corn, that is to say, the 
London quarter; and one breadth of dyed cloth and russets and 
haberjects, that is to say, two ells within the list ; and the weights 
shall be as the measures. 

XLII. From henceforward nothing shall be given or taken for 
a writ of inquisition, from him that desires an inquisition of life or 
limb, but shall be granted gratis, and not denied. 

XLIII. If any one holds of us by fee farm, or socage, or bur- 
gage, and holds lands of another by military service, we will not 
have the wardship of the heir or land, which belongs to another 
man's fee, by reason of what he Jiolds of us by fee farm, socage, 
or burgage ; nor will we have the wardship of the fee farm, soc- 
age, or burgage, unless the fee farm is bound to perform military 
service. 

XLIV. We will not have the wardship of an heir, nor of any 
land which he holds of another by military service, by reason of 



464 



ON CIVIL LIBERTY 



any petit-serjeanty he holds of us, as by the service of giving us 
arrows, daggers, or the like. 

XLV. No bailiff for the future shall put any man to his law, 
upon his single accusation, without credible witnesses produced to 
prove it. 

XL VI. No freeman shall be taken, or imprisoned, or disseised, 
or outlawed, or banished, or any ways destroyed; nor will we pass 
upon him, or commit him to prison, unless by the legal judgment 
of his peers, or unless by the law of the land. 

XLVII. We will sell to no man, we will deny no man, or defer 
right or justice. 

XLVIII. All merchants shall have safe and secure conduct to go 
out of and to come into England, and to stay there, and to pass, 
as well by land as by water, to buy and sell by the ancient and 
allowed customs, without any evil toll, except in time of war, or 
when they shall be of any nation in war with us. 

XLIX. And if there shall be found any such in our land in the 
beginning of a war, they shall be attached, without damage to 
their bodies or goods, until it may be known unto us, or our chief 
justiciary, how our merchants be treated in the nation at war with 
us ; and if ours be safe there, theirs shall be safe in our lands. 

L. It shall be lawful for the time to come, for any one to go out 
of our kingdom, and return safely and securely by land or by water, 
saving his allegiance to us; unless in time of war, by short space, 
for the benefit of the kingdom, except prisoners and outlaws, 
according to the law of the land, and people in war with us, and 
merchants who shall be in such condition as is above mentioned. 

LI. If any man holds of any escheat, as of the honor of Wal- 
lingford, Nottingham, Bologne, Lancaster, or of other escheats 
which are in our hands, and are baronies, and dies, his heir shall 
not give any other relief, or perform any other service to us than 
he would to the baron, if the barony were in possession of the 
baron ; we will hold it after the same manner the baron held it. 

LII. Those men who dwell without the forest, from henceforth 
shall not come before our justiciaries of the forest upon summons, 
but such as are impleaded or are pledges for any that were attached 
for something concerning the forest. 

LIII. We will not make any justiciaries, constables, bailiffs or 
sheriffs, but what are knowing in the laws of the realm, and are 
disposed duly to observe it. 



AND SELF-GOVERNMENT. 465 

LIV. All barons who are founders of abbies, and have charters 
of the kings of England for the advowson, or are entitled to it by- 
ancient tenure, may have the custody of them, when void, as they 
ought to have. 

LV. All woods that have been taken into the forests, in our own 
time, shall forthwith be laid out again, and the like shall be done 
with the rivers that have been taken or fenced in by us, during our 
reign. 

LVI. All evil customs concerning forests, warrens, and foresters, 
warreners, sheriffs and their officers, rivers and their keepers, shall 
forthwith be inquired into in each county, by twelve knights of the 
same shire, chosen by the most creditable persons in the same 
county, and upon oath ; and within forty days after the said in- 
quest be utterly abolished, so as never to be restored. 

LVII. We will immediately give up all hostages and engage- 
ments, delivered unto us by our English subjects as securities for 
their keeping the peace, and yielding us faithful service. 

LVIII. We will entirely remove from our bailiwicks the relations 
of Gerard de Athyes, so as that for the future they shall have no bail- 
iwick in England. We will also remove Engelard de Cygony, 
Andrew, Peter, and Gyon de Canceles, Gyon de Cygony, Geoffrey 
de Martyn and his brothers, Philip Mark and his brothers, and his 
nephew Geoffrey, and their whole retinue. 

LIX. And as soon as peace is restored, we will send out of the 
kingdom all foreign soldiers, crossbowmen and stipendiaries, who 
are come with horses and arms, to the injury of our people. 

LX. If any one hath been dispossessed or deprived by us with- 
out the legal judgment of his peers, of his lands, castles, liberties 
or right, we will forthwith restore them to him ; and if any dispute 
arises upon this head, let the matter be decided by the five and 
twenty barons hereafter mentioned, for the preservation of the 
peace. 

LXI. As for all those things of which any person has without 
the legal judgment of his peers been dispossessed or deprived, 
either by king Henry, our father, or our brother, king Richard, 
and which we have in our hands, or are possessed by others, and 
we are bound to warrant and make good, we shall have a respite 
till the term usually allowed the Croises ; excepting those things 
about which there is a suit depending, or whereof an inquest hath 
been made by our order, before we undertook the crusade. But 

3° 



466 ON CIVIL LIBERTY 

when we return from our pilgrimage, or if we do not perform it, we 
will immediately cause full justice to be administered therein. 

LXII. The same respite we shall have for disafforesting the 
forests, which Henry, our father, or our brother, Richard, have af- 
forested ; and for the wardship of lands which are in another's fee, 
in the same manner as we have hitherto enjoyed these wardships, 
by reason of a fee held of us by knight's service, and for the ab- 
bies founded in any other fee than our own, in which the lord of 
the fee claims a right ; and when we return from our pilgrimage, 
or if we should not perform it, we will immediately do full justice 
to all the complainants in this behalf. 

LXIII. No man shall be taken or imprisoned upon the appeal of 
a woman, for the death of any other man than her husband. 

LXIV. All unjust and illegal fines, and all amerciaments, im- 
posed unjustly and contrary to the law of the land, shall be en- 
tirely forgiven, or else left to the decision of the five and twenty 
barons hereafter mentioned for the preservation of the peace, or of 
the major part of them, together with the foresaid Stephen, arch- 
bishop of Canterbury, if he can be present, and others whom he 
shall think fit to take along with him ; and if he cannot be present, 
the business shall nevertheless go on without him ; but so that if 
one or more of the five and twenty barons aforesaid be plaintiffs in 
the same cause, they shall be set aside as to what concerns this par- 
ticular affair, and others be chosen in their room out of the said 
five and twenty, and sworn by the rest to decide that matter. 

LXV. If we have disseised or dispossessed the Welsh of any 
lands, liberties, or other things, without the legal judgment of 
their peers, they shall be immediately restored to them. And if 
any dispute arises upon this head, the matter shall be determined 
in the Marches, by the judgment of their peers ; for tenements in 
England, according to the law of England ; for tenements in 
Wales, according to the law of Wales ; for tenements in the 
Marches, according to the law of the Marches ; the same shall the 
Welsh do to us and our subjects. 

LXVI. As for all those things of which any Welshman hath, 
without the legal judgment of his peers, been disseised or de- 
prived, by king Henry, our father, or our brother, king Richard, 
and which we either have in our hands, or others are possessed of, 
and we are obliged to warrant it, we shall have a respite till the 
time generally allowed the Croisaders ; excepting those things, 



AND SELF-GOVERNMENT. 467 

about which a suit is pending, or whereof an inquest has been made 
by our order, before we undertook the crusade. But when we re- 
turn, or if we stay at home, and do not perform our pilgrimage, 
we will immediately do them full justice, according to the laws of 
the Welsh, and of the parts aforementioned. 

LXVII. We will without delay dismiss the son of Lewelin, 
and all the Welsh hostages, and release them from the engagements 
they entered into with us for the preservation of the peace. 

LXVIII. We shall treat with Alexander, king of Scots, con- 
cerning the restoring of his sisters, and hostages, and rights and 
liberties, in the same form and manner as we shall do to the rest 
of our barons of England; unless by the engagements which his 
father William, late king of Scots, hath entered into with us, it 
ought to be otherwise ; and this shall be left to the determination 
of his peers in our court. 

LXIX. All the aforesaid customs and liberties which we have 
granted to be holden in our kingdom, as much as it belongs to us 
towards our people, all our subjects, as well clergy as laity, shall 
observe, as far as they are concerned, towards their dependents. 

LXX. And whereas, for the honor of God and the amendment 
of our kingdom, and for quieting the discord that has arisen be- 
tween us and our barons, we have granted all the things aforesaid ; 
willing to render them firm and lasting, we do give and grant our 
subjects the following security, namely : that the barons may choose 
five and twenty barons of the kingdom, whom they shall think con- 
venient, who shall take care with all their might to hold and ob- 
serve, and cause to be observed, the peace and liberties we have 
granted them, and by this our present charter confirmed. So as 
that if we, our justiciary, our bailiffs, or any of our officers, shall 
in any case fail in the performance of them towards any person, or 
shall break through any of these articles of peace and security, 
and the offence is notified to four barons, chosen out of the five and 
twenty aforementioned, the said four barons shall repair to us, or 
to our justiciary, if we are out of the realm, and laying open the 
grievance, shall petition to have it redressed without delay ; and if 
it is not redressed by us, or, if we should chance to be out of the 
realm, if it is not redressed by our justiciary within forty days, 
reckoning from the time it has been notified to us, or to our justi- 
ciary, if we should be out of the realm, the four barons aforesaid 
shall lay the cause before the rest of the five and twenty barons, and 



468 ON CIVIL LIBERTY 

the said five and twenty barons, together with the community of 
the whole kingdom, shall distrein and distress us in all the ways 
possible ; namely, by seising our castles, lands, possessions, and in 
any other manner they can, till the grievance is redressed to their 
pleasure, saving harmless our own person, and the persons of our 
queen and children ; and when it is redressed, they shall obey us as 
before. 

LXXI. And any person whatsoever in the kingdom may swear 
that he will obey the orders of the five and twenty barons afore- 
said, in the execution of the premises, and that he will distress us 
jointly with them, to the utmost of his power ; and we give public 
and free liberty to any one that will swear to them, and never shall 
hinder any person from taking the same oath. 

LXXII. As for all those of our subjects, who will not of their 
own accord swear to join the five and twenty barons in distreining 
and 'distressing us, we will issue our order to make them take the 
same oath as aforesaid. 

LXXIII. And if any one of the five and twenty barons dies, or 
goes out of the kingdom, or is hindered any other way from put- 
ting the things aforesaid in execution, the rest of the said five and 
twenty barons may choose another in his room, at their discretion, 
who shall be sworn in like manner as the rest. 

LXXIV. In all things that are committed to the charge of these 
five and twenty barons, if, when they are all assembled together, 
they should happen to disagree about any matter, or some of 
them summoned will not, or cannot come, whatever is agreed upon 
or enjoyned by the major part of those who are present shall be 
reputed as firm and valid as if all the five and twenty had given 
their consent ; and the foresaid five and twenty shall swear that 
all the premises they shall faithfully observe, and cause with all 
their power to be observed. 

LXXV. And we will not, by ourselves or others, procure anything 
whereby any of these concessions and liberties be revoked or less- 
ened ; and if any such thing be obtained, let it be null and void ; 
neither shall we ever make use of it, either by ourselves or any 
other. 

LXXVI. And all the ill-will, anger and malice that hath arisen 
between us and our subjects of the clergy and laity, from the first 
breaking out of the dissension between us, we do fully remit and 
forgive. Moreover, all trespasses occasioned by the said dissen- 



AND SELF-GOVERNMENT. 469 

sions, from Easter, in the sixteenth year of our reign, till the resto- 
ration of peace and tranquillity, we hereby entirely remit to all, 
clergy as well as laity, and as far as in us lies, do fully forgive. 

LXXVII. We have moreover granted them our letters patents 
testimonial of Stephen, lord-archbishop of Canterbury, of Henry, 
lord -archbishop of Dublin, and the bishops aforesaid, as also of 
master Pandulph, for the security and concessions aforesaid. 

LXXVIII. Wherefore we will, and firmly enjoin, that the 
church of England be free, and that all men in our kingdom have 
and hold all the aforesaid liberties, rights and concessions, truly 
and peaceably, freely and quietly, fully and wholly, to themselves 
and their heirs, of us and our heirs, in all things and places forever, 
as is aforesaid. 

LXXIX. It is also sworn, as well on our part as upon the part 
of the barons, that all the things aforesaid shall faithfully and sin- 
cerely be observed. 

Given under our hand, in the presence of the witnesses above 
named, and many others, in the meadow called Runningmede, be- 
tween Windelsore and Staines, the 17th day of June, in the 17th 
year of our reign. 

[The Great Charter has been repeatedly amended and confirmed. 
I take the liberty ©f copying the following, down to the end of page 
477, from Mr. Creasy' s Text-Book of the Constitution. 1 ] 



1 The Text-Book of the Constitution, Magna Charta, The Petition of Right 
and the Bill of Rights, with Historical Comments and Remarks on the Present 
Political Emergencies, by E. S. Creasy, M.A., Barrister-at-Law, Professor of 
History in University College, London, &c. London, 1848. A small work of 
63 pages, excellent in its kind. 

Since the first edition of the Civil Liberty was issued, Mr. Creasy has published 
The Rise and Progress of the English Constitution, London, 1853; the third 
edition of which was republished, in 1856, in New York, i2mo, 350 pages. It is 
the best book for the student to commence the study of the British Constitution* 
and preparatory for Hallam's Constitutional History of England. Throughout 
the present work it must have appeared that a knowledge of the English Consti- 
tution and of its history is indispensable for a correct understanding of our own, 
and I recommend the work of Mr. Creasy, in this point of view, to every young 
American student. 



470 ON CIVIL LIBERTY 

MAGNA CHARTA, 
THE GREAT CHARTER, 

(translated as in the statutes at large,) 

MADE IN THE NINTH YEAR OF KING HENRY THE THIRD, AND CON- 
FIRMED BY KING EDWARD THE FIRST, IN THE FIVE AND TWEN- 
TIETH YEAR OF HIS REIGN. 

Edward, by the grace of God king of England, lord of Ireland, 
and duke of Guyan : to all archbishops, bishops, &c. We have 
seen the great charter of the lord Henry, sometimes king of Eng- 
land, our father, of the liberties of England, in these words : 

" Henry, by the grace of God king of England, lord of Ireland, 
duke of Normandy and Guyan, and earl of Anjou : to all arch- 
bishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, and 
officers, and to all bailiffs and other our faithful subjects, which shall 
see this present charter, greeting : Know ye, that we, unto the 
honor of almighty God, and for the salvation of the souls of our 
progenitors and successors, kings of England, to the advancement 
of holy church and amendment of our realm, of our mere and free 
will, have given and granted to all archbishops, bishops, abbots, 
priors, earls, barons, and to all freemen of this our realm, these 
liberties following, to be kept in our kingdom of England forever." 

CHAPTER I. 
A Co?ifirmation of Liberties. 

" First, we have granted to God, and by this our present charter 
have confirmed for us and our heirs forever, that the church of 
England shall be free, and shall have all her whole rights and liber- 
ties inviolable. We have granted, also, and given to all the free- 
men of our realm, for us and our heirs forever, these liberties 
underwritten, to have and to hold to them and their heirs, of us 
and our heirs forever." 

CHAPTER II. 

The Relief of the King' s Tenant of full Age. 

[Same as 2d chapter of John's Charter.] 



AND SELF-GOVERNMENT. 4; I 

CHAPTER III. 

The Wardship of the Heir within Age. The Heir a Knight. 

[Similar to 3d chapter of John's Charter.] 

CHAPTER IV. 

No waste shall be made by a Guardian in waste lands. 

[Same as 4th chapter of John's Charter.] 

CHAPTER V. 
Guardians shall maintain the Inheritance of Wards. Of 

Bishoprics, &>c. 
[Similar to 5th chapter of John's Charter, with addition of like 
provisions against the waste of ecclesiastical possessions while in 
the king's hand during a vacancy in the see, &c] 

CHAPTER VI. 

Heirs shall be Married without Disparagement. 

[Similar to 6th chapter of John's Charter.] 

CHAPTER VII. 

A Widow shall have her Marriage, Inheritance, and Quarantine. 

The King's Widow, &*c. 

[Similar (with additions) to the 7th and 8th chapters of John's 

Charter.] 

CHAPTER VIII. 

How Sureties shall be charged to the King. 

[Same as 9th chapter of John's Charter.] 

CHAPTER IX. 

The Liberties of LoJidon and other Cities and Towns confirmed. 

[Same as 13th chapter of John's Charter.] 

CHAPTER X. 

None shall distrain for more Service than is due. 

[Same as 16th chapter of John's Charter.] 

CHAPTER XI. 

Common Pleas shall not follow the King's Court. 

[Same as 17th chapter of John's Charter.] 



472 ON CIVIL LIBERTY 

CHAPTERS XII. & XIII. 
Whe?i and before whom Assizes shall be taken. Adjournment 
for Difficulty. Assizes of Darrein Presentment. 
[Analogous to 18th and 19th chapters of John's Charter.] 

CHAPTER XIV. 

How Men of all sorts shall be amerced, and by whom. 

[Same as 20th and 21st chapters of John's Charter.] 

CHAPTERS XV. & XVI. 
Making and defending of Bridges and Banks. 
[Similar to 23d chapter of John's Charter.] 

CHAPTER XVII. 

Holding Pleas of the Crown. 

[Same as 24th chapter of John's Charter.] 

CHAPTER XVIII. 

The King } s Debtor dying, the King shall be first paid. 

[Same as 26th chapter of John's Charter.] 

CHAPTERS XIX., XX., & XXI. 

Purveyors for a Castle. Doing of Castle-ward. Taking of 

Horses, Carts, and Woods. 

[Same as 28th, 29th, 30th, and 31st chapters of John's Charter.] 

CHAPTER XXII. 

How long Felons' 1 Lands shall be holden by the King. 
[Same as 32d chapter of John's Charter.] 

CHAPTER XXIII. 
In what places Wears shall be put down. 
[Same as 33d chapter of John's Charter.] 

CHAPTER XXIV. 

In what case a Prcecipe in Capite is grantable. 

[Same as 14th chapter of John's Charter.] 



AND SELF-GOVERNMENT. 473 

CHAPTER XXV. 

There shall be but one Measure through the Realm. 

[Same as 35th chapter of John's Charter.] 

CHAPTER XXVI. 

Inquisition of Life and Member. 
[Same as 38th chapter of John's Charter.] 

CHAPTER XXVII. 

Tenure of the King in Socage, and of another by Knighfs Service, 

Petit Serjeanty. 

[Same as 37th chapter of John's Charter.] 

CHAPTER XXVIII. 
Wager of Law shall not be without witness. 
[Same as 38th chapter of John's Charter.] 

CHAPTER XXIX. 

None shall be condemned without Trial. Justice shall not be sold 

or deferred.* 

" No freeman shall be taken, or imprisoned, or be disseised of 
his freehold, or liberties, or free customs, or be outlawed or exiled, 
or any otherwise destroyed ; nor will we pass upon him, nor con- 
demn him, but by lawful judgment of his peers, or by the law of the 
land. We will sell to no man, we will not deny or defer to any 
man, either justice or right." 

CHAPTER XXX. 

Merchant Strangers coining into this Realm shall be well used. 

[Same as 41st chapter of John's Charter.] 

CHAPTER XXXI. 

Tenure of a Barony coming into the King's hands by Escheat. 

[Same as 43d chapter of John's Charter.] 



1 See 39th and 40th chapters of John's Charter. 



474 0N CIVIL LIBERTY 

CHAPTER XXXII. 

Lands shall not be Aliened to the Prejudice of the Lord's Service 

\i. e. Lord of the Fee~\. 

CHAPTER XXXIII. 
Patro?is of Abbeys shall have the custody of them in time of Vaca- 
tion. 
[Same as 46th chapter of John's Charter.] 

CHAPTER XXXIV. 

In what cases only a Wonian shall have an Appeal of Death. 

[Same as 51st chapter of John's Charter.] 

CHAPTER XXXV. 
At what time shall be kept a County Court, a Sheriff 1 s Term, and 

a Leet. 

CHAPTER XXXVI. 
No Land shall be given in Mortmain. 
"It shall not be lawful from henceforth to any to give his lands 
to any religious house, and to take the same land again to hold of 
the same house. Nor shall it be lawful to any house of religion to 
take the lands of any, and to lease the same to him of whom he 
received it : if any from henceforth give his lands to any religious 
house, and thereupon be convict, the gift shall be utterly void, and 
the land shall accrue to the lord of the fee." 

CHAPTER XXXVI. 
A Subsidy hi respect of this Charter and the Charter of the Forest 
granted to the King. 
" Escuage from henceforth shall be taken like as it was wont to 
be in the time of king Henry, our grandfather ; reserving to all 
archbishops, bishops, abbots, priors, templars, hospitalers, earls, 
barons, and all persons, as well spiritual as temporal, all their free 
liberties and free customs, which they have had in time past. And 
all these customs and liberties aforesaid, which we have granted to 
be holden within this our realm, as much as appertaineth to us and 
our heirs, we shall observe. And all men of this our realm, as 



AND SELF-GOVERNMENT. 475 



t 



well spiritual as temporal (as much as in them is), shall observe 
the same against all persons in like wise. And for this our gift 
and grant of these liberties, and of others contained in our charter 
of liberties of our forest, the archbishops, bishops, abbots, priors, 
earls, barons, knights, freeholders, and other our subjects, have 
given unto us the fifteenth part of all their moveables. And we 
have granted unto them, for us and our heirs, that neither we nor 
our heirs shall procure or do anything whereby the liberties in this 
charter contained shall be infringed or broken. And if anything 
be- procured by any person contrary to the premises, it shall be had 
of no force nor effect. These being witnesses : Lord B., archbishop 
of Canterbury, E., bishop of London, L, bishop of Bath, P., of 
Winchester, H., of Lincoln, R., of Salisbury, W., of Rochester, 
W., of Worcester, J., of Ely, H., of Hereford, R., of Chichester, 
W., of Exeter, bishops; the abbot of St. Edmonds, the abbot of 
St. Albans, the abbot of Bello, the abbot of St. Augustine's in 
Canterbury, the abbot of Evesham, the abbot of Westminster, the 
abbot of Bourgh St. Peter, the abbot of Reding, the abbot of 
Abindon, the abbot of Malmsbury, the abbot of Winchcomb, the 
abbot of Hyde, the abbot of Certesy, the abbot of Sherburn, the 
abbot of Cerne, the abbot of Abbotebir, the abbot of Middleton, 
the abbot of Seleby, the abbot of Cirencester ; H. de Burgh, jus- 
tice, H., earl of Chester and Lincoln, W., earl of Salisbury, W., 
earl of Warren, G. de Clare, earl of Gloucester and Hereford, W. 
de Ferrars, earl of Derby, W. de Mandeville, earl of Essex, H. de 
Bygod, earl of Norfolk, W., earl of Albemarle, H., earl of Here- 
ford, J., constable of Chester, R. de Ros, R. Fitzwalter, R. de 
Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de 
Aubenie, J. Gresly, F. de Breus, J. de Monemue, J. Fitzallen, H. 
de Mortimer, W. de Beauchamp, W. de St. John, P. de Mauly, 
Brian de Lisle, Thomas de Multon, R. de Argenteyn, G- de Nevil, 
W. Mauduit, J. de Balun, and others." 

We, ratifying and approving these gifts and grants aforesaid, 
confirm and make strong all the same for us and our heirs per- 
petually ; and by the tenor of these presents do renew the same, 
willing and granting for us and our heirs that this charter, and all 
and singular its articles, forever shall be stedfastly, firmly and in- 
violably observed. Although some articles in the same charter 
contained yet hitherto peradventure have not been kept, we will 
and, by authority royal, command from henceforth firmly they be 



476 ON CIVIL LIBERTY 

observed. In witness whereof, we have caused these our letters 
patent to be made. T. Edward, our son, at Westminster, the 
twelfth day of October, in the twenty-fifth year of our reign. 

Magna Charta, in this form, has been solemnly confirmed by our 
kings and parliaments upwards of thirty times ; but in the twenty- 
fifth year of Edward I. much more than a simple confirmation of 
it was obtained for England. As has already been mentioned, the 
original charter of John forbade the levying of escuage, save by 
consent of the great council of the land ; and although those im- 
portant provisions were not repeated in Henry's charter, it is cer- 
tain that they were respected. Henry's barons frequently refused 
him the subsidies which his prodigality was always demanding. 
Neither he nor any of his ministers seems ever to have claimed for 
the crown the prerogative of taxing the landholders at discretion ; 
but the sovereign's right of levying money from his towns and 
cities, under the name of tallages or prises, was constantly exer- 
cised during Henry III.'s reign, and during the earlier portion of 
his son's. But, by the statute of Edward I. intituled Cofifirmatw 
Chartarum, all private property was secured from royal spoliation, 
and placed under the safeguard of the great council of all the 
realm. The material portions of that statute are as follows : 



CONFIRMATIO CHARTARUM. 

ANNO VICESIMO QUINTO EDV. I. 

CAP. V. 

And for so much as divers people of our realm are in fear that 
the aids and tasks which they have given to us beforetime, towards 
our wars and other business, of their own grant and good will 
(howsoever they were made), might turn to a bondage to them and 
their heirs, because they might be at another time found in the 
rolls, and likewise for the prises taken throughout the realm, in our 
name, by our ministers, we have granted for us and our heirs that 
we shall not draw such aids, tasks, nor prises, into a custom for 
anything that hath been done heretofore, be it by roll or any other 
precedent that may be founden. 



AND SELF-GOVERNMENT. 477 

CAP. VI. 

Moreover, we have granted for us and our heirs, as well to arch- 
bishops, bishops, abbots, priors, and other folk of holy church, as 
also to earls, barons, and to all the commonalty of the land, that 
for no business from thenceforth we shall take such manner of aids, 
tasks, nor prises, but by the common assent of all* the realm, and for 
the common profit thereof, saving the ancient aids and prises due 
and accustomed. 



1 " Par commun assent de tut le roiaume." The version in our statute-book 
omits the important word "All." 



APPENDIX V. 

THE PETITION OF RIGHT. 1 

To the King' s Most Excellent Majestic. 

Humbly shew unto our Sovereign Lord the King, the Lords 
Spiritual and Temporal, and Commons in Parliament assembled, 
that whereas it is declared and enacted by a Statute, made in the 
tyme of the Raigne of King Edward the first, commonly called 
" Statutum de Tallagio non concedendo," that no Tallage or Aide 
should be laid or levied, by the King or his heires, in this Realme; 
without the good-will and assent of the Arch Bishopps, Bishopps, 
Earles, Barons, Knights, Burgesses and other the freemen of the 
cominalty of this realme ; And by Authority of Parliament houlden 
in the five and twentieth yere of the Raigne of King Edward the 
third, it is declared and enacted, that from thenceforth noe person 
should be compelled to make any loanes to the King against his 
will, because such loanes were against reason, and the franchise of 
the land ; and by other lawes of this realme it is provided, that 
none should be charged by any charge or imposition, called a 
Benevolence, nor by such like charge, by which the Statuts before 
mentioned, and other the good lawes and statuts of this Realme, 
your Subjects have inherited this freedom, that they should not be 
compelled to contribute to any Tax, Tallage, Aide, or other like 
charge, not sett by common consent in Parliament. 

Yet nevertheless of late, divers commissions, directed to sundrie 
commissioners in severall Counties, with instructions, have been 
issued, by means whereof your People have bene in divers places 
assembled, and required to lend certaine sommes of money unto 
your Majestie, and many of them upon their refusall soe to doe, 
have had an oath administered unto them, not warrantable by the 



This petition was drawn up by Sir Edward Coke. Coke, 207, edit, of 1697. 
478 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 479 

Lawes or Statuts of this Realme, and have been constrained to be- 
come bound to make appearance, and give attendance before your 
Privie Councell, and in other places; and others of them have 
beene therefore imprisoned, confined, and sundrie other waves mo- 
lested and disquieted : And divers other charges have bene laid 
and leavied upon your People in severall Counties, by Lord Lieu- 
tenants, Deputie-Lieutenants, Commissioners for musters, Justices 
of peace and others, by commaunde or direction from your Majes- 
tie, or your Privie-Councell, against the lawes and free customes of 
the realme. 

And whereas alsoe by the Statute called "The greate Charter of 
the Liberties of England," it is declared and enacted, that noe 
freeman may be taken or imprisoned, or be disseised of his freehold 
or liberties, or his free customes, or be outlawed or exiled, or in 
any manner destroyed, but by the lawfull judgment of his Peeres, 
or by the lawe of the land. 

And in the eight and twentieth yere of the reigne of King Ed- 
ward the third, it was declared and ennacted by Authoritie of Par- 
liament, that no man, of what estate or condition that he be, should 
be putt out of his lands or tenements, nor taken nor imprisoned, 
nor disherited, nor putt to death, without being brought to answer 
by due process of lawe. 

Nevertheless against the tenour of the said Statutes, and other 
the good lawes and Statuts of your Realme, to that end provided, 
divers of your subjects have of late bene imprisoned without any 
cause showed ; and when for their deliverance they were brought 
before your Justices, by your Majestie's Writ of Habeas Corpus, 
there to undergoe and receive, as the Court should order, and their 
Keepers commaunded to certify the causes of their detayner ; noe 
cause was certified, but that they were detayned by your Majestie's 
special commaund, signified by the Lords of your Privie Councell, 
and yet were returned back to severall prisons, without being 
charged with any thynge to which they might make answeare ac- 
cording to the lawe. 

And whereas of late, great companies of souldiers and marriners 
have bene dispersed into divers Counties of the Realme, and the 
inhabitants against their wills have been compelled to receive them 
into their houses, and there to surfer them to sojorne, against the 
lawes and customes of this realme, and to the great grievance and 
vexation of the People. 



480 ON CIVIL LIBERTY 

And whereas alsoe, by authority of Parliament, in the 25th yere 
of the raigne of King Edward III., it is declared and enacted that 
noe man should be forejudged of life or lymbe, against the forme 
of the great Charter, and the lawe of the land, and by the said 
great Charter, and other the Laws and Statuts of this your 
Realme, no man ought to be adjudged to death, but by the lawes 
established in this your realme, either by the customes of the same 
realme, or by Acts of Parliament ; And whereas noe offender, of 
what kind soever, is exempted from the proceedings to be used, 
and the punishments to be inflicted by the lawes and statutes of 
this your realme ; nevertheless of late time, divers commissions 
under your Majestie's Greate Seale have issued forth, by which 
certaine persons have been assigned and appointed commissioners, 
with power and authoritie to proceed within the land, according 
to the justice of martiall lawe, against such souldiers and marri- 
ners, or other dissolute persons joining with them, as should com- 
mit any murder, robbery, felonie, meeting, or other outrage or 
misdemeanour, whatsoever; and by such summarie course and 
order as is agreeable to martiall lawe, and as is used in armies in 
tyme of war, to proceed to the tryal and condemnation of such 
offenders, and them to cause to be executed and putt to death, ac- 
cording to the lawe martiall. 

By pretext whereof, some of your Majestie's Subjects have bene 
by some of the said commissioners put to death, when and where, 
if lawes and statuts of the land they had deserved death, by the 
same lawes and statuts alsoe they might, and by noe other ought, to 
have been judged and executed. 

And alsoe sundrie grievous offenders, by colour thereof clayminge 
an exemption, have escaped the punishments due to them by the 
lawes and statuts of this your realm, by reason that divers of your 
officers and ministers of justice have unjustly refused or forborne to 
proceed against such offenders, according to the same lawes and 
statuts, upon pretence that the said offenders were punishable only 
by martiall lawe, and by authority of such commissions as afore- 
said ; which commissions, and all others of like nature, are wholely 
and directlie contrary to the said lawes and statuts of this your realme. 

They doe therefore humbly pray your most excellent Majestie, 
That no man hereafter be compelled to make or yielde any guifte, 
loane, benevolence, tax, or such like charge, without common con- 
sent by Act of Parliament j and that none be called to make an- 



AND SELF-GOVERNMENT. 481 

sweare, or take such oath, or to give attendance, or be confyned, or 
otherwise molested or disquieted concerning the same, or for refusal 
thereof: And that noe freeman, in any such manner as is before 
mentioned, be imprisoned or detayned : And that your Majestie 
would be pleased to remove the said souldiers and marriners, and 
that your People may not be soe burthened in the tyme to come : 
And that the aforesaid commissions for proceedinge by martiall 
lawe, may be revoaked and annulled : and that hereafter, noe com- 
missions of like nature may issue forth to any person or persons 
whatsoever, to be executed as aforesaid, least by colour of them, 
any of your Majestie's subjects be destroyed, or putt to death, con- 
trary to the lawes and franchise of the land. 

All which they do most humbly pray of your most excellent Ma- 
jestie, as their Rights and Liberties, according to the lawes and 
statuts of this Realme : And that your Majestie would also vouch- 
safe to declare, that the awardes, doeings, and proceedings, to the 
prejudice of your People, in any of the premises, shall not be 
drawn hereafter into consequence or example : And that your 
Majestie would be alsoe graciously pleased, for the further comfort 
and safetie of your people, to declare your royal will and pleasure, 
That in the things aforesaid all your officers and ministers shall 
serve you, according to the lawes and statuts of this realme, as 
they tender the honour of your Majestie, and the prosperity of this 
Kingdom. 

The King 's Answer to the Petition of Right. 

The King willeth that Right be done, according to the laws and 
customs of the realme ; and that the Statutes be put in due exe- 
cution, that his subjects may have no cause to complain of any 
wrong or oppressions, contrary to their just Rights and Liberties, 
to the preservation whereof he holds himself in conscience as well 
obliged, as of his prerogative. 

Petition of both Houses to the King, on the yth day of June, 1628, 
wherein a more full and satisfactory answer to the above Petition 
is prayed for. 

May it please your most excellent Majestie, the Lords Spiritual 
and Temporal, and Commons in Parliament assembled, taking in 
consideration that the good intelligence between your Majestie and 

31 



482 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 

your People, doth much depend upon your Majestie's answer upon 
their Petition of Right, formerly presented ; with unanimous con- 
sent do now become most humble suitors unto your Majestie, that 
you would be pleased to give a clear and satisfactory answer, there- 
unto in full Parliament. 

To which Petition the King replied : 

The answer I have already given you was made with so good 
deliberation, and approved by the judgments of so many wise men, 
that I could not have imagined but that it would have given you full 
satisfaction : But to avoid all ambiguous interpretations, and to 
show you there is no doubleness in my meaning, I am willing to 
pleasure you as well in words as in substance : Read your petition, 
and you shall have an answer that I am sure will please you. 

Here the petition was read, and the following answer was re- 
turned : " Soit Droit fait comme il est desire." C. R. 

Then said his Majesty : 

This I am sure is full, yet no more than I granted you in my 
first answer, for the meaning of that, was to confirm your liberties, 
knowing according to your own protestations, that you neither mean 
nor can hurt my prerogative. And I assure you, my maxim is, 
that the People's liberties strengthen the King's Prerogative, and 
the King's Prerogative is to defend the People's Liberties. 

You see how ready I have shown myself to satisfy your demand, 
so that I have done my part ; wherefore if this parliament have not 
a happy conclusion, the sin is yours, I am free from it. 

[The above is the Answer of the King in Parliament, and his 
Speech on that occasion, June 7th, 1628.] 



APPENDIX VI. 

AN ACT FOR THE BETTER SECURING THE LIBERTY OF 
THE SUBJECT, AND FOR PREVENTION OF IMPRISON- 
MENTS BEYOND THE SEAS, COMMONLY CALLED "THE 
HABEAS CORPUS ACT." 1 

31 CH. II., Ch. 2, MAY, 1679. 

Whereas great delays have been used by sheriffs, gaolers and 
other officers, to whose custody any of the king's subjects have been 
committed, for criminal or supposed criminal matters, in making 
returns of writs of habeas corpus, to them directed, by standing out 
on alias or pluries habeas corpus, and sometimes more, and by other 
shifts to avoid their yielding obedience to such writs, contrary to 
their duty and the known laws of the land, whereby many of the 
king's subjects have been, and hereafter may be, long detained in 
prison, in such cases where by law they are bailable, to their great 
charge and vexation : 

II. For the prevention whereof, and the more speedy relief of 
all persons imprisoned for any such criminal or supposed criminal 
matters; (2) Be it enacted, by the king s most excellent majesty, by 
and with the advice and consent of the lords spiritual and temporal, 
and commons in this present parliament assembled, and by the au- 
thority thereof, That whensoever any person or persons shall bring 
any habeas corpus directed unto any sheriff or sheriffs, gaoler, min- 
ister, or other person whatsoever, for any person in his or their 
custody, and the said writ shall be served upon the said officer, or 
left at the gaol or prison with any of the under-officers, under- 
keepers, or deputy of the said officers or keepers, that the said 
officer or officers, his or their under-officers, under-keepers or 
deputies, shall within three days after the service thereof, as afore- 



* Copied from the Statutes at Large, by Damby Pickering, Esq., edit. 1763, 
vol. 8, p. 432. 

483 



4 8 4 



ON CIVIL LIBERTY 



said (unless the commitment aforesaid were for treason or felony 
plainly and especially expressed in the warrant of commitment), 
upon payment or tender of the charges of bringing the said prisoner, 
to be ascertained by the judge or court that awarded the same, and 
endorsed upon the said writ, not exceeding 12 pence per mile, and 
upon security given by his own bond to pay the charges of carry- 
ing back the prisoner, if he shall be remanded by the court or judge 
to which he shall be brought, according to the true intent of this 
present act, and that he will not make any escape by the way, make 
return of such writ ; (3) and bring, or cause to be brought, the 
body of the party so committed or restrained, unto or before the 
lord chancellor, or lord keeper of the great seal of England, for 
the time being, or the judges or barons of the said court, from 
whence the said writ shall issue, or unto and before such other per- 
son or persons before whom the said writ is made returnable, ac- 
cording to the command thereof; (4) and shall then likewise certify 
the true causes of his detainer or imprisonment, unless the commit- 
ment of the said party be in any place beyond the distance of 
twenty miles from the place or places where such court or person is, 
or shall be residing ; and if beyond the distance of 20 miles, and 
not above 100 miles, then within the space of ten days, and if 
beyond the distance of 100 miles, then within the space of 20 days 
after such delivery aforesaid, and not longer. 

III. And to the intent that no sheriff, gaoler or other officer may 
pretend ignorance of the import of any such writ ; (2) Be it en- 
acted by the authority aforesaid, that all such writs shall be marked 
in this manner: "Per statutum, tricesimo primo Caroli secundi 
Regis," and shall be signed by the person that awards the same; 

(3) and if any person or persons shall be or stand committed or 
detained as aforesaid, for any crime, unless for felony or treason, 
plainly expressed in the warrant of commitment, in the vacation 
time and out of term it shall and may be lawful to and for the per- 
son or persons so committed or detained (other than persons con- 
vict or in execution by legal process), or any one in his or their 
behalf, to appeal or complain to the lord chancellor or lord keeper, 
or any one of his majesty's justices, either of the one bench or of 
the other, or the barons of the exchequer of the degree of the coif; 

(4) and the said lord chancellor, lord keeper, justices or barons, or 
any of them, upon view of the copy or copies of the warrant or 
warrants of commitment and detainer, or otherwise upon oath made 



AND SELF-GOVERNMENT. 485 

that such copy or copies were denied to be given by such person 
or persons in whose custody the prisoner or prisoners is or are de- 
tained, are hereby authorized and required, upon request made in 
writing by such person or persons, or any on his, her, or their be- 
half, attested and subscribed by two witnesses who were present at 
the delivery of the same, to award and grant an habeas corpus, 
under the seal of such court whereof he shall then be one of the 
judges, (5) to be directed to the officer or officers in whose custody 
the party so committed or detained shall be, returnable immediate 
before the said lord chancellor or lord keeper, or such justice, 
baron, or any other justice or baron of the degree of the coif, of 
any of the said courts ; (6) and upon service thereof as aforesaid, 
the officer or officers, his or their under-officer or under-officers, 
under-keeper or under-keepers, or their deputy, in whose custody 
the party is so committed or detained, shall within the time respect- 
ively before limited, bring such prisoner or prisoners before the 
said lord chancellor, or lord keeper, or such justices, barons, or 
one of them, before whom the said writ is made returnable, and in 
case of his absence, before any other of them, with the return of 
such writ and the true causes of the commitment or detainer ; (7) 
and thereupon, within two days after the party shall be brought 
before them, the said lord chancellor or lord keeper, or such justice 
or baron before whom the prisoner shall be brought as aforesaid, 
shall discharge the said prisoner from his imprisonment, taking his 
or their recognizance, with one or more surety or sureties, in any 
sum according to their discretions, having regard to the quality of 
the prisoner and the nature of the offence, for his or their appear- 
ance in the court of king's bench the term following, or at the 
next assizes, sessions, or general gaol delivery, of or for such county, 
city or place where the commitment was, or where the offence was 
committed, or in such other court where the said offence is properly 
cognizable, as the case shall require, and then shall certify the said 
writ with the return thereof, and the said recognizance or recog- 
nizances into the said court where such appearance is to be made ; 
(8) unless it shall appear to the said lord chancellor, or lord keeper, 
or justice or justices, or baron or barons, that the party so com- 
mitted is detained upon a legal process, order or warrant, out of 
some court that hath jurisdiction of criminal matters, or by some 
warrant signed and sealed with the hand and seal of any of the 
said justices or barons, or some justice or justices of the peace, for 



4 S6 ON CIVIL LIBERTY 

such matters or offences for the which by the law the prisoner is 
not bailable. 

IV. Provided always, and be it enacted, That if any person 
shall have wilfully neglected, by the space of two whole terms after 
his imprisonment, to pray a habeas corpus for his enlargement, such 
person so wilfully neglecting shall not have any habeas corpus to 
be granted in vacation time, in pursuance of this act. 

V. And be it further enacted, by the authority aforesaid, That 
if any officer or officers, his or their under-officer or under-officers, 
under-keeper or under-keepers, or deputy, shall neglect or refuse 
to make the returns aforesaid, or to bring the body or bodies of the 
prisoner or prisoners according to the command of the said writ, 
within the respective times aforesaid, or upon demand made by the 
prisoner or person in his behalf, shall refuse to deliver, or within 
the space of six hours after demand, shall not deliver to the person 
so demanding, a true copy of the warrant or warrants of commit- 
ment and detainer of such prisoner, which he and they are hereby 
required to deliver accordingly; all and every the head gaolers 
and keepers of such person, and such other person in whose custody 
the prisoner shall be detained, shall for the first offence forfeit to 
the prisoner or party grieved the sum of ^ioo ; (2) and for the 
second offence the sum of ^200, and shall- and is hereby made in- 
capable to hold or execute his said office ; (3) the said penalties 
to be recovered by the prisoner or party grieved, his executors and 
administrators, against such offender, his executors or adminis- 
trators, by any action of debt, suit, bill, plaint or information, in 
any of the king's courts at Westminster, wherein no essoin, protec- 
tion, privilege, injunction, wager of law, or stay of prosecution by 
"Non vult ulterius prosequi," or otherwise, shall be admitted or 
allowed, or any more than one imparlance ; (4) and any recovery 
or judgment at the suit of any party grieved, shall be a sufficient 
conviction for the first offence ; and any after recovery or judgment 
at the suit of a party grieved, for any offence after the first judg- 
ment, shall be a sufficient conviction to bring the officers or person 
within the said penalty for the second offence. 

VI. And for the prevention of unjust vexation by reiterated 
commitments for the same offence ; (2) Be it enacted, by the au- 
thority aforesaid, That no person or persons, which shall be deliv- 
ered or set at large upon any habeas corpus, shall at any time here- 
after be again imprisoned or committed for the same offence, by 



AND SELF-GOVERNMENT. 487 

any person or persons whatsoever, other than by the legal order 
and process of such court wherein he or they shall be bound by 
recognizance to appear, or other court having jurisdiction of the 
cause ; (3) and if any other person or persons shall knowingly, 
contrary to this act, recommit or imprison, or knowingly procure or 
cause to be recommitted or imprisoned, for the same offence or 
pretended offence, any person or persons delivered or set at large 
as aforesaid, or be knowingly aiding or assisting therein, then he 
or they shall forfeit to the prisoner or party grieved, the sum 
of £500 ; any colorable pretence or variation in the warrant or 
warrants of commitment notwithstanding, to be recovered as 
aforesaid. 

VII. Provided always, and be it further enacted, That if any 
person or persons shall be committed for high treason or felony, 
plainly and specially expressed in the warrant of commitment, upon 
his prayer or petition in open court, the first week of the term, or 
first day of the sessions of oyer and terminer or general gaol de- 
livery, to be brought to his trial, shall not be indicted some time in 
the next term, sessions of oyer and terminer or general gaol de- 
livery, after such commitment ; it shall and may be lawful to and 
for the judges of the court of king's bench, and justices of oyer and 
terminer or general gaol delivery, and they are hereby required, 
upon motion to them made in open court the last day of the term, 
sessions or gaol delivery, either by the prisoner or any one in his 
behalf, to set at liberty the prisoner upon bail, unless it appear to 
the judges and justices, upon oath made, that the witnesses for the 
king could not be produced the same term, sessions or general gaol 
delivery ; (2) and if any person or persons committed as aforesaid, 
upon his prayer or petition in open court the first week of the term 
or the first day of the sessions of oyer and terminer and general 
gaol delivery, to be brought to his trial, shall not be indicted and 
tried the second term, sessions of oyer and terminer or general gaol 
delivery, after his commitment, or upon his trial shall be acquitted, 
he shall be discharged from his imprisonment. 

VIII. Provided always, That nothing in this act shall extend 
to discharge out of prison any person charged in debt, or other 
action, or with process in any civil cause, but that after he shall be 
discharged of his imprisonment for such his criminal offence, he 
shall be kept in custody according to the law for such other suit. 

IX. Provided always, and be it further enacted by the authority 



4 88 ON CIVIL LIBERTY 

aforesaid, That if any person or persons, subjects of this realm, 
shall be committed to any prison, or in custody of any officer or 
officers whatsoever, for any criminal or supposed criminal matter, 
that the said person shall not be removed from the said prison and 
custody, into the custody of any other officer or officers; (2) unless 
it be by habeas corpus or some other legal writ ; or where the pris- 
oner is delivered to the constable or other inferior officer, to carry 
such prisoner to some common gaol ; (3) or where any person is 
sent by order of any judge of assize, or justice of the peace, to any 
common workhouse or house of correction ; (4) or where the pris- 
oner is removed from one place or prison to another within the 
same county, in order to his or her trial or discharge in due course 
of law ; (5) or in case of sudden lire or infection, or other neces- 
sity ; (6) and if any person or persons shall, after such commitment 
aforesaid, make out and sign or countersign any warrant or war- 
rants for such removal aforesaid, contrary to this act; as well he 
that makes or signs or countersigns such warrant or warrants, as 
the officer or officers that obey or execute the same, shall suffer and 
incur the pains and forfeitures in this act before mentioned,' both 
for the first and second offence respectively, to be recovered in 
manner aforesaid by the party grieved. 

X. Provided also, and be it further enacted by the authority 
aforesaid, That it shall and may be lawful to and for any prisoner 
and prisoners as aforesaid, to move and obtain his or their habeas 
corpus, as well out of the high court of chancery or court of ex- 
chequer as out of the courts of king's bench or common pleas, or 
either of them ; (2) and if the said lord chancellor or lord keeper, 
or any judge or judges, baron or barons, for the time being, of the 
degree of the coif, of any of the courts aforesaid, in the vacation 
time, upon view of the copy or copies of the warrant or warrants 
of commitment or detainer, upon oath made that such copy or 
copies were denied as aforesaid, shall deny any writ of habeas 
corpus, by this act required to be granted, being moved for as 
aforesaid, they shall severally forfeit to the prisoner or party 
grieved, the sum of ^500, to be recovered in manner aforesaid. 

XL And be it declared and enacted by the authority aforesaid, 
That an habeas corpus, according to the true intent and meaning 
of this act, may be directed and run into any county Palatine, the 
Cinque Ports., or other privileged places within the kingdom of 
England, dominion of Wales, or town of Berwick upon Tweed, 



AND SELF-GOVERNMENT. 489 

and the islands of Jersey or Guernsey; any law or usage to the 
contrary notwithstanding. 

XII. And for preventing illegal imprisonments in prisons beyond 
the seas ; (2) Be it further enacted by the authority aforesaid, That 
no subject of this realm, that now is or hereafter shall be an inhab- 
itant or resiant of this kingdom of England, dominion of Wales, or 
town of Berwick upon Tweed, shall or may be sent prisoner into 
Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garri- 
sons, islands, or places, beyond the seas, which are or at any time 
hereafter shall be within or without the dominions of his majesty, 
his heirs or successors ; (3) and that every such imprisonment is 
hereby enacted and adjudged to be illegal ; (4) and that if any of 
the said subjects now is or hereafter shall be so imprisoned, every 
such person and persons so imprisoned, shall and may for every 
such imprisonment maintain, by virtue of this act, an action or ac- 
tions 'of false imprisonment, in any of his majesty's courts of record, 
against the person or persons by whom he or she shall be so com- 
mitted, detained, imprisoned, sent prisoner or transported, contrary 
to the true meaning of this act, and against all or any person or 
persons that shall frame, contrive, write, seal or countersign any 
warrant or writing for such commitment, detainer, imprisonment, 
or transportation, or shall be advising, aiding, or assisting in the 
same, or any of them; (5) and the plaintiff in every such action 
shall have judgment to recover his treble costs, besides damages, 
which damages so to be given shall not be less than ^500 ; (6) in 
which action no delay, stay or stop of proceeding by rule, order or 
command, nor no injunction, protection or privilege whatsoever, 
nor any other than one imparlance, shall be allowed, excepting 
such rule of the court wherein such action shall depend, made in 
open court, as shall be thought in justice necessary for special 
cause to be expressed in said rule ; (7) and the person or persons 
who shall knowingly frame, contrive, write, seal or countersign any 
warrant for such commitment, detainer, or transportation, or shall 
so commit, detain, imprison, or transport any person or persons, 
contrary to this act, or be any ways advising, aiding or assisting 
therein, being lawfully convicted thereof, shall be disabled from 
thenceforth to bear any office of trust or profit within the said 
realm of England, dominion of Wales, or town of Berwick upon 
Tweed, or any of the islands, territories or dominions thereunto 
belonging ; (8) and shall incur and sustain the pains, penalties and 



490 ON CIVIL LIBERTY 

forfeitures limited, ordained and provided in and by the statute 
of provision and praemunire, made in the sixteenth year of king 
Richard the Second ; (9) and be incapable of any pardon from the 
king, his heirs or successors, of the said forfeitures, losses or 
disabilities, or any of them. 

XIII. Provided always, That nothing in this act shall extend 
to give benefit to any person who shall by contract in writing agree 
with any merchant or owner of any plantation, or other person 
whatsoever, to be transported to any parts beyond the seas, and 
receive earnest upon such agreement, although that afterwards 
such person shall renounce such contract. 

XIV. Provided always, and be it enacted, That if any person 
or persons lawfully convicted of any felony, shall in open court 
pray to be transported beyond the seas, and the court shall think 
fit to leave him or them in prison for that purpose, such person or 
persons may be transported into any parts beyond the seas ; this 
act, or anything herein contained, to the contrary notwithstanding. 

XV. Provided also, and be it enacted, That nothing herein 
contained shall be deemed, construed or taken to extend to the im- 
prisonment of any person before the first day of June, one thousand 
six hundred and seventy-nine, or to anything advised, procured or 
otherwise done relating to such imprisonment; anything herein 
contained to the contrary notwithstanding. 

XVI. Provided also, That if any person or persons at any time 
resiant in this realm, shall have committed any capital offence in 
Scotland or in Ireland, or in any of the islands or foreign planta- 
tions of the king, his heirs or successors, where he or she ought to 
be tried for such offence, such person or persons may be sent to 
such place, there to receive such trial in such manner as the same 
might have been used before the making of this act ; anything 
herein contained to the contrary notwithstanding. 

XVII. Provided also, and be it enacted, That no person or 
persons shall be sued, impleaded, molested or troubled for any 
offence against this act, unless the party offending be sued or im- 
pleaded for the same within two years at the most, after such time 
wherein the offence shall be committed, in case the party grieved 
shall not be then in prison; and if he shall be in prison, then 
within the space of two years after the decease of the person im- 
prisoned, or his or her delivery out of prison, which shall first 
happen. 



AND SELF-GOVERNMENT. 



491 



XVIII. And to the intent no person may avoid his trial at the 
assizes or general gaol delivery, by procuring his removal before 
the assizes, at such time as he cannot be brought back to receive 
his trial there ; (2) Be it enacted, that after the assizes proclaimed 
for that county where the prisoner is detained, no person shall be 
removed from the common gaol upon any habeas corpus granted 
in pursuance of this act, but upon any such habeas corpus shall be 
brought before the judge of assize in open court, who is thereupon 
to do what to justice shall appertain. 

XIX. Provided nevertheless, That after the assizes are ended, 
any person or persons detained may have his or her habeas corpus 
according to the direction and intention of this act. . 

XX. And be it also enacted by the authority aforesaid, That if 
any information, suit or action shall be brought or exhibited against 
any person or persons for any offence committed or to be com- 
mitted against the form of this law, it shall be lawful for such de- 
fendants to plead the general issue, that they are not guilty or that 
they owe nothing, and to give such special matter in evidence to 
the jury that shall try the same, which matter being pleaded had 
been good and sufficient matter in law to have discharged the said 
defendant or defendants against the said information, suit or action, 
and the same matter shall be then as available to him or them, to 
all intents and purposes, as if he or they had sufficiently pleaded, 
set forth or alleged the same matter in bar, or discharge of such 
information, suit or action. 

XXI. And because many times persons charged with petty trea- 
son or felony, or accessories thereunto, are committed upon sus- 
picion only, whereupon they are bailable or not, according as the 
circumstances making out that suspicion are more or less weighty, 
which are best known to the justices of the peace that committed 
the persons, and have the examination before them, or to other 
justices of the peace in the county ; (2) Be it therefore enacted, 
That where any person shall appear to be committed by any judge 
or justice of the peace, and charged as accessory before the fact to 
any petty treason or felony, or upon suspicion thereof, or with 
suspicion of petty treason or felony, which petty treason or felony 
shall be plainly and specially expressed in the warrant of commit- 
ment, that such person shall not be removed or bailed by virtue of 
this act, or in any other manner than they might have been before 
the making of this act. 



APPENDIX VII. 

BILL OF RIGHTS, PASSED i WILLIAM AND MARY, SESS. 

2, CH. 2, 1689. 

AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT, AND 
SETTLING THE SUCCESSION OF THE CROWN. 

i W. & M., 1689. 

Whereas the lords spiritual and temporal, and commons assem- 
bled at Westminster, lawfully, fully and freely representing all the 
estates of the people of this realm, did, upon the thirteenth day of 
February, in the year of our Lord one thousand six hundred and 
eighty-eight, present unto their majesties then called and known 
by the name and style of William and Mary, prince and princess 
of Orange, being present in their proper persons, a certain declara- 
tion in writing, made by the said lords and commons, in the words 
following, viz : 

Whereas the late king James the Second, by the assistance of 
divers evil counsellors, judges and ministers employed by him, did 
endeavor to subvert and extirpate the protestant religion, and the 
laws and liberties of this kingdom — 

1. By assuming and exercising a power of dispensing with and 
suspending the laws, and the execution of laws, without consent of 
parliament. 

2. By committing and prosecuting divers worthy prelates, for 
humbly petitioning to be excused from concurring to the said 
assumed power. 

3. By issuing and causing to be executed a commission under 
the great seal for erecting a court called the court of commissioners 
for ecclesiastical causes. 

4. By levying money for and to the use of the crown, by pre- 
tence of prerogative, for other time and in other manner than the 
same was granted by parliament. 

5. By raising and keeping a standing army within this kingdom 
492 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 493 

in time of peace, .without consent of parliament, and quartering 
soldiers contrary to law. 

6. By causing several good subjects, being protestants, to be 
disarmed, at the same time when papists were both armed and 
employed, contrary to law. 

7. By violating the freedom of election of members to serve in 
parliament. 

8. By prosecutions in the court of king's bench, for matters and 
causes cognizable only in parliament ; and by divers other arbitrary 
and illegal courses. 

9. And whereas of late years, partial, corrupt and unqualified 
persons have been returned and served on juries in trials, and par- 
ticularly divers jurors in trials for high treason, which were not 
freeholders. 

10. And excessive bail hath been required of persons committed 
in criminal cases, to elude the benefit of the laws made for the 
liberty of the subjects. 

n. And excessive fines have been imposed, and illegal and cruel 
punishments inflicted. 

12. And several grants and promises made of fines and forfeit- 
ures, before any conviction or judgment against the persons upon 
whom the same were to be levied. 

All which are utterly and directly contrary to the known laws 
and statutes, and freedom of this realm. 

And whereas the said late king James the Second having abdi- 
cated the government, and the throne being thereby vacant, his 
highness the prince of Orange (whom it hath pleased almighty 
God to make the glorious instrument of delivering the kingdom 
from popery and arbitrary power) did (by the advice of the lords 
spiritual and temporal, and divers principal persons of the com- 
mons) cause letters to be written to the lords spiritual and tem- 
poral, being protestants, and other letters to the several counties, 
cities, universities, boroughs, and cinque-ports, for the choosing of 
such persons to represent them as were of right to be sent to par- 
liament, to meet and sit at Westminster, upon the two and twen- 
tieth day of January, in this year one thousand six hundred eighty 
and eight, in order to such an establishment, as that their religion, 
laws and liberties might not again be in danger of being subverted ; 
upon which letters, elections have been accordingly made; 

And thereupon the said lords spiritual and temporal, and com- 



494 



ON CIVIL LIBERTY 



mons, pursuant to their respective letters and elections, being now 
assembled in a full and free representative of this nation, taking 
into their most serious consideration the best means for attaining 
the ends aforesaid, do, in the first place (as their ancestors in like 
case have usually done), for the vindicating and asserting their 
ancient rights and liberties, declare — 

i. That the pretended power of suspending of laws, or the ex- 
ecution of laws, by regal authority, without consent of parliament, 
is illegal. 

2. That the pretended power of dispensing with laws, or the 
execution of laws, by regal authority, as it hath been assumed and 
exercised of late, is illegal. 

3. That the commission for erecting the late court of commis- 
sioners for ecclesiastical causes, and all other commissions and 
courts of like nature, are illegal and pernicious. 

4. That levying money for or to the use of the crown, by pre- 
tence of prerogative, without grant of parliament, for longer time 
or in other manner than the same is or shall be granted, is illegal. 

5. That it is the right of the subjects to petition the king, and 
all commitments and prosecutions for such petitioning are illegal. 

6. That the raising or keeping a standing army within the king- 
dom in time of peace, unless it be with consent of parliament, is 
against law. 

7. That the subjects which are protestants may have arms for 
their defence suitable to their conditions, and as allowed by law. 

8. That election of members of parliament ought to be free. 

9. That the freedom of speech, and debates or proceedings in 
parliament, ought not to be impeached or questioned in any court 
or place out of parliament. 

10. That excessive bail ought not to be required, nor excessive 
fines imposed ; nor cruel and unusual punishments inflicted. 

11. That jurors ought to be duly impanelled and returned, and 
jurors which pass upon men in trials for high treason, ought to be 
freeholders. 

12. That all grants and promises of fines and forfeitures of par- 
titular persons before conviction, are illegal and void. 

13. And that for redress of all grievances, and for the amending, 
strengthening and preserving of the laws, parliaments ought to be 
held frequently. 

And they do claim, demand and insist upon all and singular the 



AND SELF-GOVERNMENT. 495 

premises, as their undoubted rights and liberties; and that no 
declarations, judgments, doings or proceedings, to the prejudice 
of the people in any of the said premises, ought in any wise to 
be drawn hereafter into consequence or example. 

To which demand of their rights they are particularly en- 
couraged by the declaration of his highness the prince of Orange, 
as being the only means for obtaining a full redress and remedy 
therein. 

Having therefore an entire confidence, That his said highness 
the prince of Orange will perfect the deliverance so far advanced 
by him, and will still preserve them from the violation of their 
rights, which they have here asserted, and from all other attempts 
upon their religion, rights and liberties : 

II. The said lords spiritual and temporal, and commons, assem- 
bled at Westminster, do resolve, That William and Mary, prince 
and princess of Orange, be, and be declared, king and queen of 
England, France and Ireland, and the dominions thereunto belong- 
ing, to hold the crown and royal dignity of the said kingdoms and 
dominions to them, the said prince and princess, during their lives, 
and the life of the survivor of them ; and that the sole and full ex- 
ercise of the regal power be only in, and executed by, the said 
prince of Orange, in the names of the said prince and princess, 
during their joint lives ; and after their deceases, the said crown 
and royal dignity of the said kingdoms and dominions to be to the 
heirs of the body of the said princess ; and for default of such 
issue, to the princess Anne of Denmark, and the heirs of her body; 
and for default of such issue, to the heirs of the body of the said 
prince of Orange. And the lords spiritual and temporal, and 
commons, do pray the said prince and princess to accept the same 
accordingly. 

III. And that the oaths hereafter mentioned be taken by all 
persons of whom the oaths of allegiance and supremacy might be 
required by law, instead of them ; and that the said oaths of alle- 
giance and supremacy be abrogated. 

I, A. B., do sincerely promise and swear, That I will be faithful 
and bear true allegiance to their majesties, king William and queen 
Mary: 

So help me God. 

I, A. B., do swear, That I do from my heart abhor, detest and 



496 ON CIVIL LIBERTY 

abjure, as impious and heretical, that damnable doctrine and posi- 
tion, That princes excommunicated or deprived by the pope, or any 
authority of the see of Rome, may be deposed or murdered by 
their subjects, or any other whatsoever. And I do declare, That 
no foreign prince, person, prelate, state or potentate hath, or ought 
to have, any jurisdiction, power, superiority, pre-eminence or au- 
thority, ecclesiastical or spiritual, within this realm : 

So help me God. 

IV. Upon which their said majesties did accept the crown and 
royal dignity of the kingdoms of England, France and Ireland, 
and the dominions thereunto belonging, according to the resolu- 
tion and desire of the said lords and commons contained in the 
said declaration. 

V. And thereupon their majesties were pleased, That the said 
lords spiritual and temporal, and commons, being the two houses 
of parliament, should continue to sit, and with their majesties' 
royal concurrence make effectual provision for the settlement of the 
religion, laws and liberties of this kingdom, so that the same for 
the future might not be in danger again of being subverted ; to 
which the said lords spiritual and temporal, and commons, did 
agree and proceed to act accordingly. 

VI. Now in pursuance of the premises, the said lords spiritual 
and temporal, and commons, in parliament assembled, for the rati- 
fying, confirming and establishing the said declaration, and the 
articles, clauses, matters and things therein contained, by the force 
of a law made in due form by authority of parliament, do pray 
that it may be declared and enacted. That all and singular the 
rights and liberties asserted and claimed in the said declaration, 
are the true, ancient and indubitable rights and liberties of the 
people of this kingdom, and so shall be esteemed, allowed, ad- 
judged, deemed and taken to be, and that all and every the par- 
ticulars aforesaid shall be firmly and strictly holden and observed, 
as they are expressed in the said declaration ; and all officers and 
ministers whatsoever shall serve their majesties and their successors 
according to the same in all times to come. 

Sections VII., VIII., IX., X., are irrelevant. 

XI. All which their majesties are contented and pleased shall 
be declared, enacted and established by authority of this present 
parliament, and shall stand, remain and be the law of this realm 



AND SELF-GOVERNMENT. 



497 



forever ; and the same are by their said majesties, by and with the 
advice and consent of the lords spiritual and temporal, and com- 
mons, in parliament assembled, and by the authority of the same, 
declared, enacted and established accordingly. 

XII. And be it further declared and enacted by the authority 
aforesaid, That from and after this present session of parliament 
no dispensation by non obstante of or to any statute, or any part 
thereof, shall be allowed, but that the same shall be held void and 
of no effect, except a dispensation be allowed of in such statute, 
and except in such cases as shall be specially provided for by one 
or more bill or bills to be passed during this present session of 
parliament. 

Section XIII. irrelevant. 



32 



APPENDIX VIII. 

A DECLARATION BY THE REPRESENTATIVES OF THE 
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED. 

When, in the course of human events, it becomes necessary for 
one people to dissolve the political bands which have connected 
them with another, and to assume, among the powers of the earth, 
the separate and equal station to which* the laws of nature and of 
nature's God entitle them, a decent respect to the opinions of man- 
kind requires that they should declare the causes which impel them 
to the separation. 

We hold these truths to be self-evident, that all men are created 
equal ; that they are endowed by their Creator with certain un- 
alienable rights ; that among these, are life, liberty, and the pursuit 
of happiness. That, to secure these rights, governments are insti- 
tuted among men, deriving their just powers from the consent of 
the governed ; that, whenever any form of government becomes 
destructive of these ends, it is the right of the people to alter or 
to abolish it, and to institute a new government, laying its founda- 
tion on such principles, and organizing its powers in such form as 
to them shall seem most likely to effect their safety and happiness. 
Prudence, indeed, will dictate that governments long established 
should not be changed for light and transient causes ; and, accord- 
ingly, all experience hath shown that mankind are more disposed 
to suffer, while evils are sufferable, than to right themselves by 
abolishing the forms to which they are accustomed. But, when a 
long train of abuses and usurpations, pursuing invariably the same 
object, evinces a design to reduce them under absolute despotism, 
it is their right, it is their duty, to throw off such government, and 
to provide new guards for their future security. Such has been 
the patient sufferance of these colonies, and such is now the neces- 
sity which constrains them to alter their former systems of gov- 
ernment. The history of the present king of Great Britain is a 
history of repeated injuries and usurpations, all having, in direct 
498 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 499 

object, the establishment of an absolute tyranny over these States. 
To prove this, let facts be submitted to a candid world : 

He has refused his assent to laws the most wholesome and neces- 
sary for the public good. 

He has forbidden his governors to pass laws of immediate and 
pressing importance, unless suspended in their operation till his 
assent should be obtained ; and, when so suspended, he has utterly 
neglected to attend to them. 

He has refused to pass other laws for the accommodation of 
large districts of people, unless those people would relinquish the 
right of representation in the legislature ; a right inestimable to 
them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, 
uncomfortable, and distant from the repository of their public 
records, for the sole purpose of fatiguing them into compliance 
with his measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause 
others to be elected ; whereby the legislative powers, incapable of 
annihilation, have returned to the people at large for their exercise ; 
the state remaining, in the meantime, exposed to all the danger of 
invasion from without, and convulsions within. 

He has endeavored to prevent the population of these States ; 
for that purpose, obstructing the laws for the naturalization of 
foreigners ; refusing to pass others to encourage their migration 
hither, and raising the conditions of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his 
assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure 
of their offices, and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms 
of officers to harass our people and eat out their substance. 

He has kept among us, in times of peace, standing armies, with- 
out the consent of our legislature. 

He has affected to render the military independent of, and 
superior to, the civil power. 

He has combined, with others, to subject us to a jurisdiction 
foreign to our constitution, and unacknowledged by our laws; 
giving his assent to their acts of pretended legislation : 



5oo 



ON CIVIL LIBERTY 



For quartering large bodies of armed troops among us : 

For protecting them, by a mock trial, from punishment for 
any murders which they should commit on the inhabitants of these 
States : 

For cutting off our trade with all parts of the world : 

For imposing taxes on us without our consent : 

For depriving us, in many cases, of the benefits of trial by jury : 

For transporting us beyond the seas to be tried for pretended 
offences : 

For abolishing the free system of English laws in a neighboring 
province, establishing therein an arbitrary government, and en- 
larging its boundaries, so as to render it at once an example and 
fit instrument for introducing the same absolute rule into these 
colonies : 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the powers of our governments : 

For suspending our own legislatures, and declaring themselves 
invested with power to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his 
protection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, 
and destroyed the lives of our people. 

He is, at this time, transporting large armies of foreign merce- 
naries to complete the works of death, desolation, and tyranny, 
already begun, with circumstances of cruelty and perfidy scarcely 
paralleled in the most barbarous ages, and totally unworthy the 
head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on the 
high seas, to bear arms against their country, to become the exe- 
cutioners of their friends and brethren, or to fall themselves by 
their hands. 

He has excited domestic insurrection amongst u«, and has en- 
deavored to bring on the inhabitants of our frontiers, the merciless 
Indian savages, whose known rule of warfare is an undistinguished 
destruction of all ages, sexes, and conditions. 

In every stage of these oppressions, we have petitioned for re- 
dress in the most humble terms ; our repeated petitions have been 
answered only by repeated injury. A prince, whose character is 
thus marked by every act which may define a tyrant, is unfit to be 
the ruler of a free people. 



AND SELF-GOVERNMENT. 501 

Nor have we been wanting in attention to our British brethren. 
We have warned them from time to time, of attempts made by 
their legislature to extend an unwarrantable jurisdiction over us. 
We have reminded them of the circumstances of our emigration 
and settlement here. We have appealed to their native justice 
and magnanimity, and we have conjured them, by the ties of our 
common kindred, to disavow these usurpations, which would in- 
evitably interrupt our connections and correspondence. They, 
too, have been deaf to the voice of justice and consanguinity. We 
must, therefore, acquiesce in the necessity which denounces our 
separation, and hold them, as we hold the rest of mankind, enemies 
in war, in peace, friends. 

We, therefore, the representatives of the United States of Amer- 
ica, in General Congress assembled, appealing to the Supreme 
Judge of the world for the rectitude of our intentions, do in the 
name, and by the authority of the good people of these colonies, 
solemnly publish and declare, That these United Colonies are, and 
of right ought to be, free and independent States ; that they are 
absolved from all allegiance to the British crown, and that all 
political connection between them and the state of Great Britain, 
is, and ought to be, totally dissolved ; and that, as free and inde- 
pendent States, they have full power to levy war, conclude peace, 
contract alliances, establish commerce, and to do all other acts and 
things which independent states may of right do. And, for the 
support of this declaration, with a firm reliance on the protection 
of Divine Providence, we mutually pledge to each other our lives, 
our fortunes, and our sacred honor. 

The foregoing declaration was, by order of Congress, engrossed 
and signed by the following members. 

JOHN HANCOCK. 

NEW HAMPSHIRE. RHODE ISLAND. 

Josiah Bartlett, Stephen Hopkins, 

William Whipple, William Ellery. 

Matthew Thornton. 

MASSACHUSETTS BAY. CONNECTICUT. 

Samuel Adams, Ro S er Sherman, 

John Adams, Samuel Huntington, 

Robert Treat Paine, William Williams, 

Elbridge Gerry. ' 01iver Wolcott. 



502 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 



NEW YORK. 

William Floyd, 
Philip Livingston, 
Francis Lewis, 
Lewis Morris. 

NEW JERSEY. 

Richard Stockton, 
John Witherspoon, 
Francis Hopkinson, 
John Hart, 
Abraham Clark. 

PENNSYLVANIA. 

Robert Morris, 
Benjamin Rush, 
Benjamin Franklin, 
John Morton, 
George Clymer, 
James Smith, 
George Taylor, 
James Wilson, 
George Ross. 

DELAWARE. 

Caesar Rodney, 
George Read, 
Thomas M'Kean. 



MARYLAND. 

Samuel Chase, 
William Paca, 
Thomas Stone, 
Charles Carroll, of Carollton. 

VIRGINIA. 

George Wythe, 
Richard Henry Lee, 
Thomas Jefferson, 
Benjamin Harrison, 
Thomas Nelson, Jun., 
Francis Lightfoot Lee, 
Carter Braxton. 

NORTH CAROLINA. 

William Hooper, 
Joseph Hewes, 
John Penn. 

SOUTH CAROLINA. 

Edward Rutledge, 
Thomas Hay ward, Jun., 
Thomas Lynch, Jun., 
Arthur Middleton. 

GEORGIA. 

Button Gwinnett, 
Lyman Hall, 
George Walton. 



Resolved, That copies of the Declaration be sent to the several 
assemblies, conventions, and committees, or councils of safety ; and 
to the several commanding officers of the continental troops ; that 
it be proclaimed in each of the United States, and at the head of 
the army. 



APPENDIX IX. 

ARTICLES OF CONFEDERATION AND PERPETUAL UNION 
BETWEEN THE STATES. 

To all to whom these presents shall come, we, the undersigned 
Delegates of the States affixed to our names, send greeting : Whereas 
the Delegates of the United States of America in congress assem- 
bled, did, on the 15th day of November, in the year of our Lord 
1777, and in the second year of the Independence of America, 
agree to certain articles of confederation and perpetual union be- 
tween the States of New Hampshire, Massachusetts Bay, Rhode 
Island and Providence Plantations, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Caro- 
lina, South Carolina, and Georgia, in the words following, viz : — 

Articles of Confederation and Perpetual Union between the States 
of New Hampshire, Massachusetts Bay, Rhode Island and Provi- 
dence Plantations, Connecticut, New York, New Jersey, Pennsyl- 
vania, Delaware, Maryland, Virginia, North Carolina, South 
Carolina, and Georgia. 

ARTICLE I. 
The style of this confederacy shall be "The United States of 
America." 

ARTICLE II. 

Each state retains its sovereignty, freedom, and independence, 
and every ^ower, jurisdiction, and right, which is not by this con- 
federation expressly delegated to the United States, in congress 
assembled. 

ARTICLE III. 

The said states hereby severally enter into a firm league of 
friendship with each other, for their common defence, the security 
of their liberties, and their mutual and general welfare ; binding 
themselves to assist each other against all force offered to, or 

503 



504 0N CIVIL LIBERTY 

attacks made upon them, or any of them, on account of religion, 
sovereignty, trade, or any other pretence whatever. 

ARTICLE IV. 

The better to secure and perpetuate mutual friendship and inter- 
course among the people of the different states in this Union, the 
free inhabitants of each of these states (paupers, vagabonds, and 
fugitives from justice excepted) shall be entitled to all privileges 
and immunities of free citizens in the several states ; and the people 
of each state shall have free ingress and regress to and from any 
other state, and shall enjoy therein all the privileges of trade and 
commerce, subject to the same duties, impositions, and restrictions, 
as the inhabitants thereof respectively, provided that such restric- 
tion shall not extend so far as to prevent the removal of property 
imported into any state, to any other state of which the owner is 
an inhabitant ; provided, also, that no imposition, duties, or re- 
striction, shall be laid by any state on the property of the United 
States, or either of them. 

If any person guilty of, or charged with, treason, felony, or 
other high misdemeanor in any state shall flee from justice, and be 
found in any of the United States, he shall, upon demand of the 
governor, or executive power, of the state from which he fled, be 
delivered up and removed to the state having jurisdiction of his 
offence. 

Full faith and credit shall be given in each of these states to the 
records, acts, and judicial proceedings, of the courts and magis- 
trates of every other state. 

ARTICLE V. 

For the more convenient management of the general interests of 
the United States, delegates shall be annually appointed in such 
manner as the legislature of each state shall direct, to meet in con- 
gress on the first Monday in November in every year, with a power 
reserved to each state to recall its delegates, or any of them at 
any time within the year, and to send others in their stead for the" 
remainder of the year. 

No state shall be represented in congress by less than two, nor 
by more than seven members ; and no person shall be capable of 
being a delegate for more than three years in any term of six 
years ; nor shall any person, being a delegate, be capable of hold- 



AND SELF-GOVERNMENT. 505 

ing any office under the United States, for which he, or another 
for his benefit, receives any salary, fees, or emolument of any kind. 

Each state shall maintain its own delegates in any meeting of 
the states, and while they act as members of the committee of the 
states. 

In determining questions in the United States, in congress 
assembled, each state shall have one vote. 

Freedom of speech or debate in congress shall not be impeached 
or questioned in any court or place out of congress, and the mem- 
bers of congress shall be protected in their persons from arrests 
and imprisonments during the time of their going to and from, and 
attendance on congress, except for treason, felony, or breach of 
the peace. 

ARTICLE VI. 

No state, without the consent of the United States in congress 
assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty, 
with any king, prince, or state ; nor shall any person holding any 
office of profit or trust under the United States, or any of them,^ 
accept of any present, emolument, office, or title, of any kind what- 
ever, from any king, prince, or foreign state ; nor shall the United 
States in congress assembled, or any of them, grant any title of 
nobility. 

No two or more states shall enter into any treaty, confederation, 
or alliance, whatever between them, without the consent of the 
United States in congress assembled, specifying accurately the 
purposes for which the same is to be entered into, and how long it 
shall continue. 

No state shall lay any imposts, or duties, which may interfere 
with any stipulations in treaties entered into by the United States 
in congress assembled, with any king, prince, or state, in pur- 
suance of any treaties already proposed by congress to the courts 
of France or Spain. 

No vessels of war shall be kept up in time of peace by any state, 
except such number only as shall be deemed necessary by the 
United States in congress assembled for the defence of such state, 
or its trade; nor shall any body of forces be kept up by any state 
in time of peace, except such number only as in the judgment of 
the United States in congress assembled shall be deemed requisite 



506 ON CIVIL LIBERTY 

to garrison the forts necessary for the defence of such state ; but 
every state shall always keep up a well-regulated and disciplined 
militia, sufficiently armed and accoutred, and shall provide, and 
have constantly ready for use in public stores, a due number of 
field-pieces and tents, and a proper quantity of arms, ammunition, 
and camp equipage. 

No state shall engage in any war without the consent of the 
United States in congress assembled, unless such state be actually 
invaded by enemies, or shall have received certain advice of a 
resolution being formed by some nation of Indians to invade such 
state, and the danger is so imminent as" not to admit of a delay till 
the United States in congress assembled can be consulted ; nor 
shall any state grant commissions to any ships or vessels of war, 
nor letters of marque or reprisal, except it be after a declaration 
of war by the United States in congress assembled, and then only 
against the kingdom, or state, and the subjects thereof, against 
which war has been so declared, and under such regulations as 
shall be established by the United States in congress assembled, 
unless such state be infested by pirates, in which case vessels of war 
may be fitted out for that occasion, and kept so long as the danger 
shall continue, or until the United States in congress assembled 
shall determine otherwise. 

ARTICLE VII. 

When land forces are raised by any state for the common de- 
fence, all officers of, or under the rank of colonel shall be appointed 
by the legislature of each state respectively, by whom such forces 
shall be raised, or in such manner as such state shall direct, and 
all vacancies shall be filled up by the state which first made the 
appointment. 

ARTICLE VIII. 

All charges of war, and all other expenses that shall be incurred 
for the common defence or general welfare, and allowed by the 
United States in congress assembled, shall be defrayed out of a 
common treasury, which shall be supplied by the several states, in 
proportion to the value of all land within each state granted to, or 
surveyed for any person, as such land, and the buildings and im- 
provements thereon, shall be estimated according to such mode as 
the United States in congress assembled shall from time to time 



AND SELF-GOVERNMENT. 



507 



direct and appoint. The taxes for paying that proportion shall 
be laid and levied by the authority and direction of the legislatures 
of the several states within the time agreed upon by the United 
States in congress assembled. 

ARTICLE IX. 

The United States in congress assembled shall have the sole and 
exclusive right and power of determining on peace and war, ex- 
cept in the cases mentioned in the 6th article ; of sending and re- 
ceiving ambassadors; entering into treaties and alliances, provided 
that no treaty of commerce shall be made whereby the legislative 
power of the respective states shall be restrained from imposing 
such imposts and duties on foreigners as their own people are sub- 
jected to, or from prohibiting the exportation or importation of 
any species of goods or commodities whatsoever ; of establishing 
rules for deciding in all cases what captures on land or water shall 
be legal, and in what manner prizes taken by land or naval forces 
in the service of the United States shall be divided or appro- 
priated ; of granting letters of marque and reprisal in times of 
peace ; appointing courts for the trial of piracies and felonies com- 
mitted on the high seas, and establishing courts for receiving and 
determining finally appeals in all cases of captures, provided that 
no member of congress shall be appointed a judge of any of the 
said courts. 

The United States in congress assembled shall also be the last 
resort on appeal in all disputes and differences now subsisting, or 
that hereafter may arise, between two or more states, concerning 
boundary, jurisdiction, or any other cause whatever — which au- 
thority shall always be exercised in the manner following : When- 
ever the legislative or executive authority, or lawful agent, of any 
state in controversy with another shall present a petition to con- 
gress, stating the matter in question and praying for a hearing, 
notice thereof shall be given, by order of congress, to the legisla- 
tive or executive authority of the other state in controversy, and 
a day assigned for the appearance of the parties by their lawful 
agents, who shall then be directed to appoint, by joint consent, 
commissioners or judges to constitute a court for hearing and de- 
termining the matter in question ; but, if they cannot agree, con- 
gress shall name three persons out of each of the United States, 
and from the list of such persons each party shall alternately 



508 ON CIVIL LIBERTY 

strike out one (the petitioners beginning,) until the number shall 
be reduced to thirteen ; and from that number not less than seven, 
nor more than nine names, as congress shall direct, shall in the 
presence of congress be drawn out by lot, and the perscms whose 
names shall be so drawn, or any five of them, shall be commis- 
sioners or Judges, to hear and finally determine the controversy, so 
always as a major part of the judges who shall hear the cause shall 
agree in the determination ; and if either party shall neglect to 
attend at the day appointed, without showing reasons which con- 
gress shall judge sufficient, or being present shall refuse to strike, 
the congress shall proceed to nominate three persons out of each 
state, and the secretary of congress shall strike in behalf of such 
party absent or refusing ; and the judgment and the sentence of 
the court, to be appointed in the manner before prescribed, shall be 
final and conclusive ; and if any of the parties shall refuse to sub- 
mit to the authority of such court, or to appear or defend their 
claim or cause, the court shall, nevertheless, proceed to pronounce 
sentence or judgment, which shall in like manner be final and de- 
cisive — the judgment, or sentence, and other proceedings being in 
either case transmitted to congress, and lodged among the acts of 
congress for the security of the parties concerned ; provided that 
every commissioner, before he sits in judgment, shall take an oath 
to be administered by one of the judges of the supreme or supe- 
rior court of the state where the cause shall be tried, "well and 
truly to hear and determine the matter in question according to 
the best of his judgment, without favor, affection, or hope of 
reward;" provided, also, that no state shall be deprived of terri- 
tory for the benefit of the United States. 

All controversies concerning the private right of soil claimed 
under different grants of two or more states, whose jurisdictions, 
as they may respect such lands, and the states which passed such 
grants are adjusted, the said grants or either of them being at the 
same time claimed to have originated antecedent to such settlement 
of jurisdiction, shall, on the petition of either party to the Congress 
of the United States, be finally determined as near as may be in 
the same manner as is before prescribed for deciding disputes 
respecting territorial jurisdiction between different states. 

The United States in congress assembled shall also have the 
sole and exclusive right and power of regulating the alloy and value 
of coin struck by their own authority, or by that of the respective 



AND SELF-GOVERNMENT. 



509 



states — fixing the standard of weights and measures throughout 
the United States — regulating the trade and managing all affairs 
with the Indians, not members of any of the states, provided that 
the legislative right of any state within its own limits be not in- 
fringed or violated — establishing or regulating post-offices from one 
state to another, throughout all the United States, and exacting 
such postage on the papers passing through the same as may be 
requisite to defray the expenses of the said office — appointing all 
officers of the land forces, in the service of the United States, ex- 
cepting regimental officers — appointing all the officers of the naval 
forces, and commissioning all officers whatever in the service of the 
United States — making rules for the government and regulation of 
the said land and naval forces, and directing their operations. 

The United States, in congress assembled, shall have authority 
to appoint a committee, to sit in the recess of congress, to be de- 
nominated " A Committee of the States," and to consist of one 
delegate from each state; and to appoint such other committees 
and civil officers as may be necessary for managing the general 
affairs of the United States under their direction — to appoint one 
of their number to preside, provided that no person be allowed to 
serve in the office of president more than one year in any term of 
three years : to ascertain the necessary sums of money to be raised 
for the service of the United States, and to appropriate and apply 
the same for defraying the public expenses— to borrow money, or 
emit bills on the credit of the United States, transmitting every 
half year to the respective states an account of the sums of money 
so borrowed or emitted — to build and equip a navy — to agree upon 
the number of land forces, and to make requisitions from each state 
for its quota, in proportion to the number of white inhabitants in 
such state ; which requisition shall be binding, and thereupon the 
legislature of each state shall appoint the regimental officers, raise 
the men, and clothe, arm, and equip them in a soldier-like man- 
ner, at the expense of the United States ; and the officers and men 
so clothed, armed, and equipped shall march to the place appointed, 
and within the time agreed on by the United States in congress 
assembled : But if the United States, in congress assembled, shall, 
on consideration of circumstances, judge proper that any state 
should not raise men, or should raise a smaller number than its 
quota, and that any other state should raise a greater number of 
men than the quota thereof} such extra number shall be raised, 



510 ON CIVIL LIBERTY 

officered, clothed, armed, and equipped in the same manner as the 
quota of such state, unless the legislature of such state shall judge 
that such extra number cannot be safely spared out of the same, in 
which case they shall raise, officer, clothe, arm, and equip as many 
of such extra number as they judge can be safely spared. And the 
officers and men so clothed, armed, and equipped, shall march to 
the place appointed, and within the time agreed on by the United 
States in congress assembled. 

The United States in congress assembled, shall never engage in a 
war, nor grant letters of marque and reprisal in time of peace, nor 
enter into any treaties or alliances, nor coin money, nor regulate the 
value thereof, nor ascertain the sums and expenses necessary for the 
defence and welfare of the United States, or any of them, nor emit 
bills, nor borrow money on the credit of the United States, nor ap- 
propriate money, nor agree upon the number of vessels of war, to be 
built or purchased, or the number of land or sea forces to be raised, 
nor appoint a commander-in-chief of the army or navy, unless nine 
states assent to the same ; nor shall a question on any other point, 
except for adjourning from day to day, be determined, unless by the 
votes of a majority of the United States in congress assembled. 

The congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United 
States, so that no period of adjournment be for a longer duration 
than the space of six months, and shall publish the journal of their 
proceedings monthly, except such parts thereof relating to treaties, 
alliances, or military operations, as in their judgment require se- 
crecy ; and the yeas and nays of the delegates of each state on any 
question shall be entered on the journal, when it is desired by any 
delegate; and the delegates of a state, or any of them, at his or 
their request, shall be furnished with a transcript of the said jour- 
nal, except such parts as are above excepted, to lay before the 
legislatures of the several states. 

ARTICLE X. 

The committee of the states, or any nine of them, shall be au- 
thorized to execute, in the recess of congress, such of the powers 
of congress as the United States in congress assembled, by the 
consent of nine states, shall, from time to time, think expedient to 
vest them with ; provided that no power be delegated to the said 



AND SELF-GOVERNMENT. 511 

committee, for the exercise of which, by the articles of confedera- 
tion, the voice of nine states, in the congress of the United States 
assembled, is requisite. 

ARTICLE XL 

Canada acceding to this confederation, and joining in the meas- 
ures of the United States, shall be admitted into, and entitled to 
all the advantages of this union : but no other colony shall be ad- 
mitted into the same, unless such admission be agreed to by nine 
states. 

ARTICLE XII. 

All bills of credit emitted, moneys borrowed, and debts con- 
tracted by, or under the authority of congress, before the assem- 
bling of the United States, in pursuance of the present confedera- 
tion, shall be deemed and considered as a charge against the United 
States, for payment and satisfaction whereof the said United States, 
and the public faith are hereby solemnly pledged. 

ARTICLE XIII. 

Every state shall abide by the determinations of the United 
States in congress assembled, on all questions which by this con- 
federation is submitted to them. And the articles of this confed- 
eration shall be inviolably observed by every state, and the union 
shall be perpetual; nor shall any alteration at any time- hereafter 
be made in any of them ; unless such alteration be agreed to in a 
congress of the United States, and be afterwards confirmed by the 
legislature of every state. 

And whereas, it hath pleased the Great Governor of the World 
to incline the hearts of the legislatures we respectively represent 
in congress, to approve of, and to authorize us to ratify the said 
articles of confederation and perpetual union : Know Ye, that we 
the undersigned delegates, by virtue of the power and authority 
to us given for that purpose, do by these presents, in the name and 
in behalf of our respective constituents, fully and entirely ratify 
and confirm each and every of the said articles of confederation 
and perpetual union, and all and singular the matters and things 
therein contained : And we do further solemnly plight and engage 
the faith of our respective constituents, that they shall abide by the 



512 ON CIVIL LIBERTY. 

determinations of the United States in congress assembled, on all 
questions, which by the said confederation are submitted to them. 
And that the articles thereof shall be inviolably observed by the 
states we respectively represent, and that the union shall be per- 
petual. In witness whereof we have hereunto set our hands in 
congress. Done at Philadelphia in the state of Pennsylvania, the 
ninth day of July in the year of our Lord 1778, and in the third 
year of the Independence of America. 

On the part and behalf of the state of New Hampshire : 

Josiah Bartlett, John Wentworth, Jun., 

Aug. 8, 1778. 

On the part and behalf of the state of Massachusetts Bay : 

John Hancock, Francis Dana, 

Samuel Adams, James Lovell, 

Elbridge Gerry, Samuel Holten. 

On the part and behalf of the state of Rhode Island and Provi- 
dence Plantations : 
William Ellery, John Collins. 

Henry Marchant, 

On the part and behalf of the state of Connecticut : 

Roger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 

Oliver Wolcott, 

On the part and behalf of the state of New York 

Jas. Duane, William Duer, 

Fras. Lewis, Gouvr. Morris. 

On the part and behalf of the state of New Jersey, November 
26, 1778 : 

Jno. Witherspoon, Nathl. Scudder. 

On the part and behalf of the state of Pennsylvania : 

Robt. Morris, William Clingan, 

Daniel Roberdeau, Joseph Reed, 

Jona. Bayard Smith, 22d July, 1778. 



AND SELF-GOVERNMENT. 513 

On the part and behalf of the state of Delaware : 

Tho. M'Kean, Feb. 12, 1779. Nicholas Van Dyke. 
John Dickinson, May 5, 1779. 

On the part and behalf of the state of Maryland : 

John Hanson, Daniel Carroll, 

March 1, 1781. March 1, 1781. 

On the part and behalf of the state of Virginia : 

Richard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee, 

Thomas Adams, 

On the part and behalf of the state of North Carolina : 

John Penn, Corns. Harnett, 

July 21, 1778. Jno. Williams. 

On the part and behalf of the state of South Carolina : 

Henry Laurens, Richd. Hutson, 

William Henry Drayton, Thos. Hayward, Jun. 

Jno. Mathews, 

On the part and behalf of the state of Georgia : 

Jno. Walton, Edwd. Telfair, 

24th July, 1778. Edwd. Langworthy. 



33 



APPENDIX X. 

CONSTITUTION OF THE UNITED STATES OF AMERICA. 

We, the people of the United States, in order to form a more 
perfect Union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States of 
America. 

ARTICLE I. 

Section i. All legislative powers herein granted shall be vested 
in a congress of the United States, which shall consist of a senate 
and house of representatives. 

Section 2. The house of representatives shall be composed of 
members chosen every second year by the people of the several 
states, and the electors in each state shall have the qualifications 
requisite for electors of the most numerous branch of the state 
legislature. 

No person shall be a representative who shall not have attained 
to the age of twenty-five years, and been seven years a citizen of 
the United States, and who shall not, when elected, be an inhabitant 
of that state in which he shall be chosen. 

Representatives and direct taxes shall be apportioned among 
the several states which may be included within this Union, accord- 
ing to their respective numbers, which shall be determined by adding 
to the whole number of free persons, including those bound to ser- 
vice for a term of years, and excluding Indians not taxed, three- 
fifths of all other persons. The actual enumeration shall be made 
within three years after the first meeting of the congress of the 
United States, and within every subsequent term of ten years, in 
such manner as they shall by law direct. The number of repre- 
sentatives shall not exceed one for every thirty thousand, but each 
state shall have at least one representative ; and until such enumer- 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 515 

aticm shall be made, the state of New Hampshire shall be entitled 
to choose three, Massachusetts eight, Rhode Island and Providence 
Plantations one, Connecticut five, New York six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, 
North Carolina five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any state, the 
executive authority thereof shall issue writs of election to fill such 
vacancies. 

The house of representatives shall choose their speaker, and other 
officers ; and shall have the sole power of impeachment. 

Section 3. The senate of the United States shall be composed 
of two senators from each state, chosen by the legislature thereof, 
for six years ; and each senator shall have one vote. 

Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated 
at the expiration of the second year, of the second class at the ex- 
piration of the fourth year, and of the third class at the expiration 
of the sixth year, so that one-third may be chosen every second 
year ; and if vacancies happen by resignation, or otherwise, during 
the recess of the legislature of any state, the executive thereof may 
make temporary appointments until the next meeting of the legis- 
lature, which shall then fill such vacancies. 

No person shall be a senator who shall not have attained to the 
age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that 
State for which he shall be chosen. 

The Vice-President of the United States shall be president of 
the senate, but shall have no vote, unless they be equally divided. 

The senate shall choose their other officers, and also a president 
pro tempore, in the absence of the vice-president, or when he shall 
exercise the office of President of the United States. 

The senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the chief justice 
shall preside ; and no person shall be convicted without the concur- 
rence of two-thirds of the members present. 

Judgment in case of impeachment shall not extend further than 
to removal from office, and disqualification to hold and enjoy any 
office of honor, trust or profit, under the United States ; but the 



5 t6 on civil liberty 

party convicted shall nevertheless be liable and subject to indict- 
ment, trial, judgment, and punishment according to law. 

Section 4. The times, places, and manner of holding elections 
for senators and representatives shall be prescribed in each state by 
the legislature thereof; but the congress may at anytime bylaw- 
make or alter such regulations, except as to the places of choosing 
senators. 

The congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall 
by law appoint a different day. 

Section 5. Each house shall be the judge of the elections, re- 
turns and qualifications of its own members, and a majority of each 
shall constitute a quorum to do business ; but a smaller number 
may adjourn from day to day, and may be authorized to compel 
the attendance of absent members, in such manner and under such 
penalties as each house may provide. 

Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the concurrence of 
two-thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in their 
judgment require secrecy ; and the yeas and nays of the members 
of either house, on any question, shall, at the desire of one-fifth of 
those present, be entered on the journal. 

Neither house, during the session of congress, shall, without 
the consent of the other, adjourn for more than three days, nor 
to any other place than that in which the two houses shall be 
sitting. 

Section 6. The senators and representatives shall receive a com- 
pensation for their services, to be ascertained by law, and paid out 
of the treasury of the United States. They shall in all cases, except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective houses, 
and in going to and returning from the same ; and for any speech 
or debate in either house, they shall not be questioned in any other 
place. 

No senator or representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority 
of the United States, which shall have been created, or the 
emoluments whereof shall have been increased during such time ; 



AND SELF-GOVERNMENT. ^7 

and no person holding any office under the United States shall be 
a member of either house during his continuance in office. 

Section 7. All bills for raising revenue shall originate in the 
house of representatives ; but the senate may propose or concur 
with amendments as on other bills. 

Every bill which shall have passed the house of representatives 
and the senate, shall, before it become a law, be presented to the 
President of the United States. If he approve, he shall sign it ; 
but if not, he shall return it, with his objections, to that house in 
which it shall have originated, who shall enter the objections at 
large on their journal, and proceed to reconsider it. If, after such 
reconsideration, two-thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered, and if approved 
by two-thirds of that house, it shall become a law. But in all 
such cases the votes of both houses shall be determined by yeas 
and nays, and the names of the persons voting for and against the 
bill shall be entered on the journal of each house respectively. 
If any bill shall not be returned by the president within ten days 
(Sundays excepted) after it shall have been presented to him, the 
same shall be a law, in like manner as if he had signed it, unless 
the congress by their adjournment prevent its return ; in which 
case, it shall not be a law. Every order, resolution, or vote, to 
which the concurrence of the senate and house of representatives 
may be necessary (except on a question of adjournment), shall be 
presented to the President of the United States ; and before the 
same shall take effect, shall be approved by him ; or, being disap- 
proved by him, shall be repassed by two-thirds of the senate and 
house of representatives, according to the rules and limitations 
prescribed in the case of a bill. 

Section 8. The congress shall have power 

To lay and collect taxes, duties, imposts, and excises ; to pay the 
debts and provide for the common defence and general welfare of 
the United States ; but all duties, imposts, and excises shall be 
uniform throughout the United States : 

To borrow money on the credit of the United States : 

To regulate commerce with foreign nations, and among the 
several states, and with the Indian tribes : 

To establish an uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States : 



518 ON CIVIL LIBERTY 

To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures : 

To provide for the punishment of counterfeiting the securities 
and current coin of the United States : 

To establish post-offices and post-roads : 

To promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive right to 
their respective writings and discoveries : 

To constitute tribunals inferior to the supreme court : 

To define and punish piracies and felonies committed on the high 
seas, and offences against the law of nations : 

To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water : 

To raise. and support armies; but no appropriation of money to 
that use shall be for a longer term than two years : 

To provide and maintain a navy : 

To make rules for the government and regulation of the land 
and naval forces : 

To provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions : 

To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the 
service of the United States, reserving to the states respectively 
the appointment of the officers, and the authority of training the 
militia according to the discipline prescribed by congress : 

To exercise exclusive legislation, in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by ces- 
sion of particular states and the acceptance of congress, become 
the seat of the government of the United States, and to exercise 
like authority over all places purchased by the consent of the 
legislature of the state in which the same shall be, for the erec- 
tion of forts, magazines, arsenals, dock-yards, and other needful 
buildings. And 

To make all laws which shall be necessary and proper for carry- 
ing into execution the foregoing powers, and all other powers 
vested by this constitution in the government of the United States, 
or in any department or officer thereof. 

Section 9. The migration or importation of such persons as any 
of the states now existing shall think proper to admit, shall not be 
prohibited by the congress prior to the year one thousand eight 



AND SELF-GOVERNMENT. 



519 



hundred and eight \ but a tax or duty may be imposed on such 
importation, not exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may 
require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration hereinbefore directed to be 
taken. 

No tax or duty shall be laid on articles exported from any 
state. 

No preference shall be given, by any regulation of commerce or 
revenue, to the ports of one state over those of another ; nor shall 
vessels bound to or from one state be obliged to enter, clear, or pay 
duties in another. 

No money shall be drawn from the treasury, but in consequence 
of appropriations made by law ; and a regular statement and ac- 
count of the receipts and expenditures of all public money shall be 
published from time to time. 

No title of nobility shall be granted by the United States ; and 
no person holding any office of profit or trust under them shall, 
without the consent of the congress, accept of any present, emolu- 
ment, office, or title of any kind whatever, from any king, prince, 
or foreign state. 

Section 10. No state shall enter into any treaty, alliance or 
confederation ; grant letters of marque and reprisal ; coin money ; 
emit bills of credit ; make anything but gold and silver coin a 
tender in payment of debts; pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts, or grant 
any title of nobility. 

No state shall, without the consent of the congress, lay any 
imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws ; and the net 
produce of all duties and imposts, laid by any state on imports or 
exports, shall be for the use of the treasury of the United States ; 
and all such laws shall be subject to the revision and control of the 
congress. 

No state shall, without the consent of congress, lay any duty of 
tonnage, keep troops or ships of war in time of peace, enter into 
any agreement or compact with another state, or with a foreign 



520 ON CIVIL LIBERTY 

power, or engage in war, unless actually invaded, or in such immi- 
nent danger as will not admit of delay. 

ARTICLE II. 

Section i. The executive power shall be vested in a president 
of the United States of America. He shall hold his office during 
the term of four years, and, together with the vice-president, chosen 
for the same term, be elected as follows : — 

Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors, equal to the whole 
number of senators and representatives to which the state may 
be entitled in the congress; but no senator or representative, or 
person holding an office of trust or profit under the United States, 
shall be appointed an elector. 

[ x The electors shall meet in their respective states, and vote by 
ballot for two persons, of whom one at least shall not be an in- 
habitant of the same state with themselves. And they shall make 
a list of all the persons voted for, and of the number of votes for 
each \ which list they shall sign and certify, and transmit sealed to 
the seat of the government of the United States, directed to the 
president of the senate. The president of the senate shall, in the 
presence of the senate and house of representatives, open all the 
certificates, and the votes shall then be counted. The person 
having the greatest number of votes shall be the president, if such 
number be a majority of the whole number of electors appointed ; 
and if there be more than one who have such majority, and have 
an equal number of votes, then the house of representatives shall 
immediately choose by ballot one of them for president ; and if no 
person have a majority, then from the five highest on the list the 
said house shall in like manner choose the president. But in 
choosing the president, the votes shall be taken by states, the 
representation from each state having one vote. A quorum for this 
purpose shall consist of a member or members from two-thirds 
of the states, and a majority of all the states shall be necessary 
to a choice. In every case, after the choice of the president, the 
person having the greatest number of votes of the electors shall be 



1 This clause within brackets has been superseded and annulled by the 12th 
amendment, on pages 527-28. 






AND SELF-GOVERNMENT. 



521 



the vice-president. But if there should remain two or more who 
have equal votes, the senate shall choose from them by ballot the 
vice-president.] 

The congress may determine the time of choosing the electors, 
and the day on which they shall give their votes ; which day shall 
be the same throughout the United States. 

No person except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this constitution, shall 
be eligible to the office of president ; neither shall any person be 
eligible to that office who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident within the 
United States. 

In case of the removal of the president from office, or of his 
death, resignation, or inability to discharge the powers and duties 
of the said office, the same shall devolve on the vice-president, and 
the congress may by law provide for the case of removal, death, 
resignation, or inability, both of the president and vice-president, 
declaring what officer shall then act as president ; and such officer 
shall act accordingly, until the disability be removed, or a presi- 
dent shall be elected. 

The president shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected ; and he 
shall not receive within that period any other emolument from the 
United States, or any of them. 

Before he enter on the execution of his office, he shall take the 
following oath or affirmation : 

U I do solemnly swear (or affirm) that I will faithfully execute 
the office of President of the United States, and will, to the best 
of my ability, preserve, protect, and defend the Constitution of the 
United States." 

Section 2. The president shall be commander-in-chief of the 
army and navy of the United States, and of the militia of the 
several states, when called into the actual service of the United 
States ; he may require the opinion, in writing, of the principal 
officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices ; and he shall have 
power to grant reprieves and pardons for offences against the 
United States, except in cases of impeachment. 



522 ON CIVIL LIBERTY 

He shall have power, by and with the advice and consent of the 
senate, to make treaties, provided two-thirds of the senators 
present concur ; and he shall nominate, and by and with the advice 
and consent of the senate, shall appoint ambassadors, other public 
ministers and consuls, judges of the supreme court, and all other 
officers of the United States whose appointments are not herein 
otherwise provided for, and which shall be established by law ; but 
the congress may by law vest the appointment of such inferior offi- 
cers, as they think proper, in the president alone, in the courts of 
law, or in the heads of departments. 

The president shall have power to fill up all vacancies that may 
happen during the recess of the senate, by granting commissions 
which shall expire at the end of their next session. 

Section 3. He shall from time to time give to the congress 
information of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary and expe- 
dient ; he may, on extraordinary occasions, convene both houses, 
or either of them ; and in case of disagreement between them, with 
respect to the time of adjournment, he may adjourn them to such 
time as he shall think proper : he shall receive ambassadors and 
other public ministers ; he shall take care that the laws be faith- 
fully executed, and shall commission all the officers of the United 
States. 

Section 4. The president, vice-president, and all civil officers 
of the United States shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

ARTICLE III. 

Section i. The judicial power of the United States shall be 
vested in one supreme court, and in such inferior courts as the 
congress may from time to time ordain and establish. The judges, 
both of the supreme and inferior courts, shall hold their offices 
during good behavior, and shall, at stated times, receive for their 
services a compensation, which shall not be diminished during their 
continuance in office. 

Section 2. The judicial power shall extend to all cases, in law 
and equity, arising under this constitution, the laws of the United 
States, and treaties made, or which shall be made, under their au- 
thority ; to all cases affecting ambassadors, other public ministers, 



AND SELF-GOVERNMENT. 523 

and consuls; to all cases of admiralty and maritime jurisdiction; 
to controversies, to which the United States shall be a party ; to 
controversies between two or more states; between a state and 
citizens of another state ; between citizens of different states ; be- 
tween citizens of the same state claiming lands under grants of 
different states, and between a state, or the citizens thereof, and 
foreign states, citizens or subjects. 

In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a state shall be party, the supreme 
court shall have original jurisdiction. In all the other cases before 
mentioned, the supreme court shall have appellate jurisdiction, 
both as to law and fact, with such exceptions, and under such 
regulations as the congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be 
by jury ; and such trial shall be held in the state where the said 
crimes shall have been committed ; but when not committed within 
any state, the trial shall be at such place or places as the congress 
may by law have directed. 

Section 3. Treason against the United States shall consist only 
in levying war against them, or in adhering to their enemies, giving 
them aid and comfort. No person shall be convicted of treason 
unless on the testimony of two witnesses to the same overt act, or 
on confession in open court. 

The congress shall have power to declare the punishment of 
treason; but no attainder of treason shall work corruption of 
blood, or forfeiture except during the life of the person attainted. 

ARTICLE IV. 

Section i. Full faith and credit shall be given in each state to 
the public acts, records, and judicial proceedings of every other 
state. And the congress may by general laws prescribe the man- 
ner in which such acts, records, and proceedings shall be proved, 
and the effect thereof. 

Section 2. The citizens of each state shall be entitled to all 
privileges and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other 
crime, who shall flee from justice, and be found in another state, 
shall, on demand of the executive authority of the state from 
which he fled, be delivered up, to be removed to the state having 
jurisdiction of the crime. 



524 0N CIVIL LIBERTY 

No person held to service or labor in one state, under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such serviae 
or labor may be due. 

Section 3. New states may be admitted by the congress into 
this Union ; but no new state shall be formed or erected within 
the jurisdiction of any other state ; nor any state be formed by 
the junction of two or more states, or parts of states, without the 
consent of the legislatures of the states concerned, as well as of 
the congress. 

The congress shall have power to dispose of and make all need- 
ful rules and regulations respecting the territory or other property 
belonging to the United States ; and nothing in this constitution 
shall be so construed as to prejudice any claims of the United 
States, or of any particular state. 

Section 4. The United States shall guarantee to every state in 
this Union a republican form of government, and shall protect each 
of them against invasion; and on application of the legislature, or 
of the executive (when the legislature cannot be convened), against 
domestic violence. 

ARTICLE V. 

The congress, whenever two-thirds of both houses shall deem 
it necessary, shall propose amendments to this constitution ; or, 
on the application of the legislatures of two- thirds of the several 
states, shall call a convention for proposing amendments, which, in 
either case, shall be valid to all intents and purposes, as part of 
this constitution, when ratified by the legislatures of three-fourths 
of the several states, or by conventions in three-fourths thereof, as 
the one or the other mode of ratification may be proposed by the 
congress ; provided that no amendment which may be made prior 
to the year one thousand eight hundred and eight, shall in any 
manner affect the first and fourth clauses in the ninth section of 
the first article ; and that no state, without its consent, shall be 
deprived of its equal suffrage in the senate. 

ARTICLE VI. 
All debts contracted and engagements entered into, before the 
adoption of this constitution, shall be as valid against the United 
States, under this constitution, as under the Confederation. 



AND SELF-GOVERNMENT. 525 

This constitution, and the laws of the United States which shall 
be made in pursuance thereof; and all treaties made, or which 
shall be made, under the authority of the United States, shall be 
the supreme law of the land ; and the judges in every state shall 
be bound thereby, anything in the constitution or laws of any state 
to the contrary notwithstanding. 

The senators and representatives before mentioned, and the mem- 
bers of the several state legislatures, and all executive and judicial 
officers, both of the United States and of the several states, shall 
be bound by oath or affirmation to support this constitution ; but 
no religious test shall ever be required as a qualification to any 
office or public trust under the United States. 

ARTICLE VII. 
The ratification of the conventions of nine states shall be suffi- 
cient for the establishment of this constitution between the states 
so ratifying the same. 

Done in convention, by the unanimous consent of the states 
present, the seventeenth day of September, in the year of our Lord 
one thousand seven hundred and eighty-seven, and of the inde- 
pendence of the United States of America the twelfth. In witness 
whereof, we have hereunto subscribed our names. 

GEO. WASHINGTON, 

President and deputy from Virginia. 

[Here follow the names of the signers from the different states. 
See next page for additions and amendments.] 



526 ON CIVIL LIBERTY 



Articles in addition to, and amendment of, the Constitution of the 
United States of America, proposed by Congress, and ratified by 
the Legislatures of the several States, pursuant to the fifth article 
of the original Constitution. 

ARTICLE I. 
Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press ; or the right of the people 
peaceably to assemble, and to petition the government for a redress 
of grievances. 

ARTICLE II. 
A well regulated militia, being necessary to the security of a free 
state, the right 6f the people to keep and bear arms shall not be 
infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house, 
without the consent of the owner ; nor in time of war, but in a 
manner to, be prescribed by law. 

ARTICLE IV. 
The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated ; and no warrants shall issue, but upon prob- 
able cause, supported by oath or affirmation, and particularly 
describing the place to be searched, and the persons or things to 
be seized. 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise in- 
famous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war or public danger; 
nor shall any person be subject for the same offence to be twice 
put in jeopardy of life or limb ; nor shall be compelled, in any 
criminal case, to be a witness against himself; nor be deprived of 



AND SELF-GOVERNMENT. 527 

life, liberty, or property, without due process of law ; nor shall 
private property be taken for public use, without just compensa- 
tion. 

ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the state and dis- 
trict wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation ; to be confronted with 
the witnesses against him ; to have compulsory process for obtain- 
ing witnesses in his favor, and to have the assistance of counsel 
for his defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
court of the United States, than according to the rules of the 
common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

ARTICLE IX. 
The enumeration in the constitution of certain rights, shall not 
be construed to deny or disparage others retained by the people. 

ARTICLE X. 
The powers not delegated to the United States by the constitu- 
tion, nor prohibited by it to the states, are reserved to the states 
respectively, or to the people. 

ARTICLE XL 
The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, or 
by citizens or subjects of any foreign state. 

ARTICLE XII. 
The electors shall meet in their respective states, and vote by 
ballot for president and vice-president, one of whom, at least, shall 



528 ON CIVIL LIBERTY 

not be an inhabitant of the same state with themselves ; they shall 
name in their ballots the person voted for as president, and in dis- 
tinct ballots the person voted for as vice-president ; and they shall 
make distinct lists of all persons voted for as president, and of all 
persons voted for as vice-president, and of the number of votes for 
each, which list they shall sign and certify and transmit sealed 
to the seat of government of the United States, directed to the 
president of the senate ; the president of the senate shall, in 
presence of the senate and house of representatives, open all the 
certificates and the votes shall then be counted ; the person having 
the greatest number of votes for president, shall be the president, 
if such number be a majority of the whole number of electors ap- 
pointed ; and if no person have such majority, then from the per- 
sons having the highest numbers not exceeding three on the list 
of those voted for as president, the house of representatives shall 
choose immediately, by ballot, the president. But in choosing the 
president, the votes shall be taken by states, the representation 
from each state having one vote ; a quorum for this purpose shall 
consist of a member, or members from two-thirds of the states, 
and a majority of all the states shall be necessary to a choice. 
And if the house of representatives shall not choose a president 
whenever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the vice-president shall 
act as president, as in the case of the death or other constitutional 
disability of the president. The person having the greatest num- 
ber of votes as vice-president, shall be the vice-president, if such 
number be a majority of the whole number of electors appointed ; 
and if no person have a majority, then from the two highest num- 
bers on the list the senate shall choose the vice-president; a 
quorum for the purpose shall consist of two-thirds of the whole 
number of senators, and a majority of the whole number shall be 
necessary to a choice. But no person constitutionally ineligible 
to the office of president shall be eligible to that of vice-president 
of the United States. 

ARTICLE XIII. 
Section i. Neither slavery nor involuntary servitude, except as 
a punishment for crime, whereof the party shall have been duly 
convicted, shall exist within the United States, or any place sub- 
ject to their jurisdiction. 



AND SELF-GOVERNMENT. 



529 



Section 2. Congress shall have power to enforce this article by 
appropriate legislation. 

ARTICLE XIV. 

Section i. All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United 
States and of the state wherein they reside. No state shall make 
or enforce any law which shall abridge the privileges or immunities 
of citizens of the United States ; nor shall any state deprive any 
person of life, liberty, or property, without due process of law, nor 
deny to any person within its jurisdiction the equal protection of 
the laws. 

Section 2. Representatives shall be apportioned among the sev- 
eral states according to their respective numbers, counting the 
whole number of persons in each state, excluding Indians not 
taxed. But when the right to vote at any election for the choice 
of electors for president and vice-president of the United States, 
representatives in congress, the executive and judicial officers of a 
state, or the members of the legislature thereof, is denied to any 
of the male inhabitants of such state, being twenty-one years of 
age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion or other crime, the basis of 
representation therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number of 
male citizens twenty-one years of age in such state. 

Section 3. No person shall be a senator or representative in 
congress, or elector of president and vice-president, or hold any 
office, civil or military, under the United States, or under any 
state, who having previously taken an oath as a member of con- 
gress, or as an officer of the United States, or as a member of any 
state legislature, or as an executive or judicial officer of any state, 
to support the Constitution of the United States, shall have en- 
gaged in insurrection or rebellion against the same, or given aid or 
comfort to the enemies thereof. But congress may, by a vote of 
two-thirds of each house, remove such disability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions 
and bounties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States nor any 
state shall assume or pay any debt or obligation incurred in aid of 

34 



530 ON CIVIL LIBERTY AND SELF-GOVERNMENT, 

insurrection or rebellion against the United States, or any claim 
for the loss or emancipation of any slave; but all such debts, 
obligations, and claims shall be held illegal and void. 

Section 5. That congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. 

ARTICLE XV. 

Section i. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any 
state on account of race, color, or previous condition of servitude. 

Section 2. The congress shall have power to enforce this article 
by appropriate legislation. 



APPENDIX XL 

THE FRENCH CONSTITUTION, ADOPTED AND PRO- 
CLAIMED ON THE TWENTY-FOURTH OF JUNE, 1793. 

THE FIRST REPUBLICAN CONSTITUTION. 



Had the space permitted it, I would have given all the French 
constitutions, from the first in the first revolution, to that now- 
called the constitution of the empire. As it is, I must restrict 
myself to the following selection. 

I have copied the translation of the first republican constitution 
of France from a work by Mr. Bernard Roelker, of the New 
York bar, The Constitutions of France, Monarchical and Repub- 
lican, together with Brief Historical Remarks, relating to their 
Origin, and the late Orleans Dynasty, Boston, Mass., 1848. 



DECLARATIONS OF THE RIGHTS OF MAN AND OF 
CITIZENS. 

The French people, convinced that oblivion and contempt of 
the natural rights of man are the only causes of calamities in the 
world, has resolved to explain these sacred and inalienable rights 
in a solemn declaration, that all citizens, by comparing always the 
acts of the government with the whole social union, may never 
suffer themselves to be oppressed and dishonored by tyranny ; that 
the people may always have before its eyes the fundamental pillars 
of its liberty and welfare, and the authorities the standard of their 
duties, and the legislator the object of his problem. 

It accordingly makes, in the presence of the Highest Being, the 
following declaration of the rights of man and of the citizens. 

53i 



532 



ON CIVIL LIBERTY 



i. The object of society is the general welfare. Government is 
instituted, to insure to man the free use of his natural and inalien- 
able rights. 

2. These rights are equality, liberty, security, property. 

3. All men are equal by nature and before the law. 

4. Law is the free and solemn proclamation of the general will ; 
it is the same for all, be it protective or penal ; it can command 
only what is just and beneficial to society, and prohibit only what 
is injurious to the same. 

5. All citizens are equally admissible to all public offices. Free 
nations are in their elections guided by no other considerations 
than virtues and talents. 

6. Freedom is the power, by which man can do what does not 
interfere with the rights of another ; its basis is nature ; its stand- 
ard is justice; its protection is law; its moral boundary is the 
maxim : Do not unto others what you do not wish they should do 
unto you. 

7. The right of communicating thoughts and opinions, either 
through the press, or in any other manner ; the right of assembling 
peaceably ; the free exercise of religion, cannot be prohibited. 

The necessity publicly to claim these rights, presupposes the 
actual existence of despotism, or the fresh recollection of the same. 

8. Security rests on the protection given by society to each of 
its members, for the preservation of his person, his rights and his 
property. 

9. Law must protect the general and 'the individual liberty 
against the oppression of those who govern. 

10. No one can be accused, arrested, or kept in close custody, 
except in the cases specified by law, and according to the pre- 
scribed forms ; every citizen who, by virtue of the law, is sum- 
moned before court or arrested, must immediately obey; every 
refusal shows him to be guilty. 

1 1 . Every order against a person, in cases and forms not speci- 
fied by law, is arbitrary and tyrannical ; the person against whom 
such an order should be executed by force, has the right to resist 
it by force. 

12. Those who cause, aid in, sign, execute or cause to be ex- 
ecuted, such arbitrary acts, are culpable, and must be punished. 

13. Since every man is deemed to be innocent, until he be 
proved guilty, if his condemnation will necessarily lead to arrest, 



AND SELF-GOVERNMENT. 533 

every severity, not required for the forthcoming of his person, is 
strictly prohibited. 

14. Only he who has been first heard or legally summoned, can 
be condemned and punished, and this only by a law promulgated 
before the commission of the crime. A law which would punish 
transgressions, committed before its publication, would be tyranny ; 
and it would be a crime to give retrospective force to law. 

15. Law shall order punishments only which are unavoidably 
necessary; the punishments shall be suitable to the crime, and 
beneficial to society. 

16. The right of property is that by which every citizen can en- 
joy his goods and his income, the fruits of his labor and industry, 
and dispose of them at pleasure. 

17.. No kind of occupation, employment and trade can be pro- 
hibited to citizens. 

18. Every one may dispose of his services and time at pleasure; 
but he can neither sell himself nor be sold. His person is inalien- 
able property. The law does not recognize a state of servitude ; 
an agreement only for services rendered and a compensation for 
them, can exist between him who labors and him who employs 
him. 

19. Without his consent, no one can be deprived of the least 
part of his property, unless it be required by a general and legally 
specified necessity, and then only on condition of a just and pre- 
viously fixed indemnity. 

20. No tax can be laid except for the common welfare. All 
citizens have the right to have a voice in the laying of taxes, to 
watch over the application of them, and to have an account ren- 
dered thereof. 

21. The public support of the poor is a sacred obligation. So- 
ciety takes upon itself the support of needy citizens, either by 
giving work to them, or by giving subsistence to those who are 
unable to work. 

22. Instruction is a want for all. Society shall further with all 
its power the progress of the public welfare, and regulate instruc- 
tion according to the wants of all citizens. 

23. Social guarantee rests on the activity of all to secure to each 
one the enjoyment and the preservation of his rights. This guar- 
antee rests on the sovereignty of the people. 

24. It cannot exist, if the boundaries of public administration 



534 0N CIVIL LIBERTY 

be not definitely specified by law, and unless the responsibility of 
all public officers be secured. 

25. Sovereignty belongs to the people. It is one and indivisible, 
imprescriptible and inalienable. 

26. No single part of the people can exercise the power of the 
whole people ; but every assembled section of the sovereign people 
enjoys the right to express its will with perfect freedom. 

27. Every individual who would assume the sovereignty shall be 
at once condemned to death by the free men. 

28. The people have the right to revise, amend, and alter their 
constitution. One generation cannot bind succeeding generations 
to its laws. 

29. Every citizen has the right of taking part in the legislation, 
and of appointing his representatives or agents. 

30. Public functions are in their nature temporary ; they cannot 
be considered as distinctions, nor as rewards, but as obligations. 

31. The offences of the representatives of the people and of its 
agents, shall not be unpunished. No one has the right to hold 
himself more inviolable than the other citizens. 

32. The right of presenting petitions to the public authorities 
can in no case be interdicted, abolished or limited. 

33. Resistance to oppression is the inference from the other 
rights of man. 

34. It is oppression of the whole of society, if but one of its 
members be oppressed. Oppression of every single member exists, 
when the whole of society is oppressed. 

35. When government violates the rights of the people, insur- 
rection of the people and of every single part of it, is the most 
sacred of its rights and the highest of its duties. 

(Signed) COLLOT D'HERBOIS, President. 

Durand Maillane, Ducos, Meaulle, 
Charles de la Croix, Gossuin, P. A. Laloy, 

Secretaries. 



AND SELF-GOVERNMENT. 535 



CONSTITUTION 

OF THE TWENTY-FOURTH OF JUNE, 1 793. 
OF THE REPUBLIC. 

i. The French Republic is one and indivisible. 

OF THE DIVISION OF THE PEOPLE. 

' 2. The French people is, for the purpose of exercising its sover- 
eignty, divided into primary assemblies according to cantons. 

3. For the purpose of administration and justice, it is divided 
into departments, districts, and municipalities. 

OF THE RIGHT OF CITIZENSHIP. 

4. £very man born and living in France, of twenty-one years 
of age, and every alien, who has attained the age of twenty-one, 
and has been domiciled in France one year, and lives from his 
labor ; 

or has acquired property ; 

or has married a French woman ; 

or has adopted a child ; 

or supports an aged man ; f 
and finally every alien whom the legislative body has declared as 
one well deserving of the human race, are admitted to exercise the 
rights of a French citizen. 

5. The right of exercising the rights of citizen is lost : 

by being naturalized in a foreign state ; 

by accepting offices of state, or favors which do not proceed 

from a democratic government ; 
by being sentenced to dishonorable or corporal punishments, 

till reinstated in the former state. 

6. The exercise of the rights of citizen is suspended : 

by being in a state of accusation ; 

by a sentence in contumaciam, so long as this sentence has 
not been rescinded. 



536 ON CIVIL LIBERTY 



OF THE SOVEREIGNTY OF THE PEOPLE. 

7. The sovereign people embraces the whole of French citizens. 

8. It chooses its deputies directly. 

9. It delegates to electors the choice of administrators, public 
civil judges, penal judges, and judges of cassation. 

10. It deliberates on laws. 

OF THE PRIMARY ASSEMBLIES. 

11. The primary assemblies are formed of the citizens who have 
resided six months in a canton. 

12. They consist of no less than 200 and no more than 600 
citizens, called together for the purpose of voting. 

13. They are organized, after a president, secretaries and col- 
lectors of votes have been appointed. 

14. They exercise their own police. 

15. No one is allowed to appear there with arms. 

16. The elections are made either by secret or loud voting, at 
the pleasure of each voter. 

17. A primary meeting can in no case prescribe more than one 
manner of voting. 

18. The collectors of votes note down the votes of those citizens 
who cannot write, and yet prefer to vote secretly. 

19. The votes on laws are given by "Yes," and "No." 

20. The elections of primary assemblies are published in the 
following manner : 

The united citizens in the primary assembly at , numbering 

votes, vote for, or vote against, by a 7najority of . 

OF THE NATIONAL REPRESENTATION. 

21. Population is the only basis of national representation. 

22. For every 40,000 individuals, one deputy is chosen. 

23. Every primary assembly which is formed of from 39,000 to 
41,000 individuals, chooses directly a deputy. 

24. The choice is effected by an absolute majority of votes. 

25. Every assembly makes an abstract of the votes, and sends a 
commissioner to the appointed central place of general record. 

26. If at the first voting, no absolute majority be effected, a 



AND SELF-GOVERNMENT. 537 

second meeting shall be held, and those two citizens who had the 
most votes, shall be voted for again. 

27. In case of an equal division of votes, the oldest person has 
the preference, no matter whether he was voted for, or whether he 
was chosen without it. In case of an equality of age, the casting 
of lots shall decide. 

28. Every Frenchman, who enjoys the rights of a citizen, is 
eligible throughout the whole republic. 

29. Every deputy belongs to the whole nation. 

30. In case of non-acceptance, of abdication, or expiration of 
office, or of the death of a deputy, the primary assembly which had 
chosen him shall choose a substitute. 

31. A deputy who hands in his resignation, cannot leave his post 
till his successor shall have been appointed. 

32. The French people assembles every year on the 1st of May 
for election. 

^^. It proceeds thereto, whatever the number of citizens [present] 
may be, who have a right to vote. 

34. Extraordinary primary meetings are held at the demand of 
one-fifth of the eligible citizens. 

35. The meeting is, in this case, called by the municipal author- 
ity of the usual place of assembly. 

36. These extraordinary meetings can transact business only when 
at least more than one-half of the qualified voters are present. 

OF THE ELECTORAL ASSEMBLIES. 

37. The citizens, united in primary assemblies, nominate in pro- 
portion of 200 citizens, (they may be present or not,) one elector ; 
two, for from 301 to 400 ; three, for from 501 to 600. 

38. The holding of election meetings, and the manner of elec- 
tion, are the same as in the primary meetings. 

OF THE LEGISLATIVE BODY. 

39. The legislative body is one, indivisible and continual. 

40. Its session lasts one year. 

41. It assembles on the 1st of July. 

42. The national assembly cannot be organized, unless at least 
one more than one-half of the deputies are present. 

43. The deputies can, at no time, be held answerable, accused 



533 



ON CIVIL LIBERTY 



or condemned on account of opinions uttered within the legislative 
body. 

44. In criminal cases, they may be arrested if caught in the act ; 
but the warrant of arrest and the warrant of committal can be 
issued only by the legislative body. 

MODE OF PROCEDURE OF THE LEGISLATIVE BODY. 

45. The sessions of the national assembly are public. 

46. The debates in their sessions shall be printed. 

47. It cannot deliberate, unless it consist of 200 members. • 

48. It cannot refuse to members the floor, in the order in which 
they demand the same. 

49. It decides by a majority of those present. 

50. Fifty members have the right to demand a call by names. 

51. It has the right of censorship on the conduct of the members 
in its midst. 

52. It exercises the power of police at the place of its sessions, 
and within the whole extent of its environs. 

OF THE FUNCTIONS OF THE LEGISLATIVE BODY. 

53. The legislative body proposes laws, and issues decrees. 

54. By the general name of law, are understood the provisions 
of the legislative body which concern : 

the civil and penal legislation ; 

the general administration of revenues and of the ordinary 

expenditures of the republic ; 
the national domains ; 

the inscription, alloy, stamp and names of coins; 
declaration of war ; 

every new general division of the French territory; 
public instruction; 
public demonstrations of honor to the memory of great men. 

55. By the particular name of decrees are understood those 
enactments of the legislative body, which concern : 

the annual establishment of the land and marine forces; 
the permission or refusal of the marching of foreign troops 

through the French territory ; 
the admission of foreign vessels of war into the ports of the 

republic ; 



AND SELF-GOVERNMENT. 539 

the measures for the common peace and safety ; 

the distribution of annual and momentary relief and of 
public works ; 

the orders for the stamping of coins of every description ; 

the unforeseen and extraordinary expenses ; 

the local and particular orders for an administration, a com- 
mune, and any kind of public works ; 

the defence of the territory ; 

the ratification of treaties ; 

the nomination and removal of the commander-in-chief of 
the army ; 

the carrying into effect the responsibility of members of the 
executive council, and of public officers ; 

the accusation of discovered conspiracies against the com- 
mon safety of the republic ; 

every alteration in the division of the French territory; 

the national rewards. 

OF THE MAKING OF LAWS. 

56. A notice must precede the introduction of a bill. 

57. Not till after a fortnight from the giving of notice can the 
debate begin, and the law be temporarily accepted. 

58. The proposed law is printed and sent to all the communes 
of the republic, under the address of, Proposed law. 

59. If, forty days after the sending in of the proposed law, of 
the absolute majority of departments, one-tenth of all the primary 
meetings, legally assembled by the departments, have not protested, 
the bill is accepted and becomes a law. 

60. If protest be made, the legislative body calls together the 
primary meetings. 

OF THE SUPERSCRIPTION OF LAWS AND DECREES. 

61. The laws, decrees, sentences, and all public transactions are 
superscribed : 

In the name of the French people, in the year of the French 

Republic. 

OF THE EXECUTIVE POWER. 

62. There shall be an executive council, consisting of twenty- 
four members. 

63. The electoral assembly of each department nominates a 



540 ON CIVIL LIBERTY 

candidate. The legislative body chooses from this general list the 
members of the executive council. 

64. It shall be renewed each half session of every legislature, in 
the last months of its session. 

65. The executive council has the management and supervision 
of the general administration. Its activity is limited to the execu- 
tion of laws and decrees of the legislative body. 

65. It appoints, but not out of its midst, the highest agents of 
the general administration of the republic. 

67. The legislative body establishes the number of these agents, 
and their business. 

68. These agents form no council. They are separated one from 
the other, and have no relation among themselves. They exercise 
no personal power. 

69. The executive council chooses, but not from its midst, the 
foreign agents of the republic. 

70. It negotiates treaties. 

71. The members of the executive council are, in case of viola- 
tion of duties, accused by the legislative body. 

72. The executive council is responsible for the non-execution 
of the laws and decrees, and the abuses, of which it does not give 
notice. 

73. It recalls and substitutes the agents at pleasure. 

74. It is obliged, if possible, to inform the judicial authorities 
regarding them. 

OF THE MUTUAL RELATIONS BETWEEN THE EXECUTIVE COUNCIL, 
AND THE LEGISLATIVE EODY. 

75. The executive council shall have its seat near the legislative 
body. It shall have admittance to, and a special seat at the place 
of session. 

76. It shall every time be heard, when it shall have to give 
account. 

77. The legislative body shall call it into its midst, in whole or 
in part, when it is thought necessary. 

OF THE ADMINISTRATIVE AUTHORITIES AND THE MUNICIPALITIES. 

78. There shall be a municipal authority in each commune of 
the republic ; and in each district an intermediate administration ; 
and in each department a central administration. 



AND SELF-GOVERNMENT. $41 

79. The municipal officers are chosen by the assemblies of the 
commune. 

80. The administrators are chosen by the electoral assemblies of 
the departments and of the district. 

81. The municipalities and the administrative authorities are 
annually renewed one-half. 

82. The administrative authorities and municipal officers have 
not a representative character. They can, in no case, limit the 
resolves of the legislative body, nor the execution of them. 

83. The legislative body assigns the business of the municipal 
officers and of the administrative authorities, the rules regarding 
their subordination, and the punishments to which they may be- 
come liable. 

84. The sessions of the municipalities and of the administrative 
authorities are held in public. 

OF CfVIL JUSTICE. 

85 . The civil and penal code is the same for the whole re- 
public. 

86. No encroachment can be made upon the right of citizens 
to have their matters in dispute decided on by arbitrators of their 
own choice. 

87. The decision of these arbitrators is final, unless the citizens 
have reserved the right of protesting. 

88. There shall be justices of the peace, chosen by the citizens 
of the districts, appointed by law. 

89. They shall conciliate and hold court without fees. 

90. Their number and extent of power shall be established by 
the legislative body. 

91. There shall be public judges of arbitration, who are chosen 
by electoral assemblies. 

92. Their number and districts are fixed by the legislative body. 

93. They shall decide on matters in controversy, which have 
not been brought to a final decision by private arbitrators or by 
-the justices of the peace. r 

94. They shall deliberate publicly. 
They shall vote with loud voice. 

They shall decide in the last resort on oral pleadings, or on a 
simple petition, without legal forms and without cost. 
They shall assign the reasons of their decisions. 



542 ON CIVIL LIBERTY 

95. The justices of the peace and the public arbitrators are 
chosen annually. 

OF CRIMINAL JUSTICE. 

96. In criminal cases, no citizen can be put on trial, except a 
true bill of complaint be found by a jury, or by the legislative 
body. 

The accused shall have advocates, either chosen by themselves, 
or appointed officially. 

The proceedings are in public. 

The state of facts and the intention are passed upon by a jury. 

The punishment is executed by a criminal authority. 

97. The criminal judges are chosen annually by the electoral 
assemblies. 

OF THE COURT OF CASSATION. 

98. There is a court of cassation for the whole republic. 

99. This court takes no cognizance of the state of facts. 

It decides on the violation of matters of form, and on trans- 
gressions expressed by law. 

100. The members of this court are appointed annually through 
the electoral assemblies. 

OF THE GENERAL TAXES. 

10 1. No citizen is excluded from the honorable obligation to 
contribute towards the public expenses. 

OF THE NATIONAL TREASURY. 

102. The national treasury is the central point of the revenues 
and expenses of the republic. 

103. It is managed by public accountants, whom the legislative 
body shall elect. 

104. These agents are supervised by officers of account, whom 
the legislative body shall elect, but who cannot be taken from their 
own body : they are responsible for abuses of which they do not 
give legal notice to the courts. 

OF THE RENDITION OF ACCOUNTS. 

105. The accounts of the agents of the national treasury, and 
those of the administrators of public moneys are taken annually, 
by responsible commissioners appointed by the executive council. 



AND SELF-GOVERNMENT. 543 

106. Those persons appointed to revise the accounts are under 
the supervision of commissioners, who are elected by the legisla- 
tive body, not out of their own number ; and they are responsible 
for the frauds and mistakes of accounts, of which they do not 
give notice. 

The legislative body preserves the accounts. 

OF THE MILITARY FORCES OF THE REPUBLIC. 

107. The general military power of the republic consists of the 
whole people. 

108. The republic supports, also, in times of peace, a paid land 
and marine force. 

109. All Frenchmen are soldiers; all shall be exercised in the 
use of arms. 

no. There is no generalissimo. 

in. The distinction of grade, the military marks of distinction 
and subordination, exist only in service and in time of its duration. 

112. The general military force is used for the preservation of 
order and peace in the interior ; it acts only on a written requisi- 
tion of the constituted authorities. 

113. The general military force against foreign enemies is under 
the command of the executive council. 

114. No armed body can deliberate. 

OF THE NATIONAL CONVENTION. 

115. If of the absolute majority of departments, the tenth part 
of their regularly formed primary assemblies demand a revision of 
the constitution, or an alteration of some of its articles ; the legis- 
lative body is obliged to call together all primary assemblies of the 
republic, in order to ascertain whether a national convention shall 
be called. 

116. The national convention is formed in like manner as the 
legislatures, and unites in itself the highest power. 

117. It is occupied, as regards the constitution, only with those 
subjects which caused its being called together. 

OF THE RELATIONS OF THE FRENCH REPUBLIC TOWARDS FOREIGN 

NATIONS. 

118. The French nation is the friend and natural ally of free 
nations. 



544 ON CIVIL LIBERTY AND SELF-GOVERMMENT. 

119. It does not interfere with the affairs of government of other 
nations. It suffers no interference of other nations with its own. 

120. It serves as a place of refuge for all who, on account of 
liberty, are banished from their native country. 

These it refuses to deliver up to tyrants. 

121. It concludes no peace with an enemy that holds possession 
of its territory. 

OF THE GUARANTY OF RIGHTS. 

122. The constitution guarantees to all Frenchmen equality, 
liberty, security, property, the public debt, free exercise of religion, 
general instruction, public assistance, absolute liberty of the press, 
the right of petition, the right to hold popular assemblies, and the 
enjoyment of all the rights of man. 

123. The French republic respects loyalty, courage, age, filial 
love, misfortune. It places the constitution under the guaranty of 
all virtues. 

124. The declaration of the rights of man and the constitution 
shall be engraven on tables, to be placed in the midst of the legis- 
lative body, and in public places. 

(Signed) COLLOT D'HERBOIS, President. 

Durand-Maillane, Ducos, Meaulle, 

Charles de la Croix, Gossuin, P. A. Laloy, 

Secretary 



APPENDIX XII. 



FRENCH CHARTER OF LOUIS XVIII. AND THAT ADOPTED 
IN THE YEAR 1830. 

The following is the charter of 1830, as I translated it in that 
year, for a work published in Boston, under the title of " Events in 
Paris during the 26th, 27th, 28th and 29th of July : translated 
from the French." 

This charter of August 8, 1830, is in substance the charter of 
Louis XVIII. with such changes as the chambers adopted in favor 
of liberty. The new articles, or the amendments of the old ones, 
are printed in italics, and the old readings or suppressed articles 
are given in notes : so that the paper exhibits both the charters. 



FRENCH CHARTER OF 1830. 

The whole preamble of the ancient charter was suppressed, as 
containing the principle of concession and octroi (grant), incom- 
patible with that of the acknowledgment of national sovereignty. 

The following is the substitution of the preamble : 

DECLARATION OF THE CHAMBER OF DEPUTIES. 

The chamber of deputies, taking into consideration the imperi- 
ous necessity which results from the events of the 26th, 27th, 28th 
and 29th of July, and the following days; and from the situation 
in which France is placed in consequence of the violation of the 
constitutional charter : 

Considering, moreover, that by this violation, and the heroic 
resistance of the citizens of Paris, his majesty Charles X., his royal 
highness Louis Antoine, dauphin, and all the members of the senior 

35 545 



546 ON CIVIL LIBERTY 

branch of the royal house, are leaving, at this moment, the French 
territory — 

Declares that the throne is vacant de facto et de jure, and that it 
is necessary to fill it. 

The chamber of deputies declares secondly, that according to the 
wish, and for the interest of the French people, the preamble of 
the constitutional charter is suppressed, as wounding the national 
dignity in appearing to grant to the French rights which essentially 
belong to them ; and that the following articles of the same char- 
ter ought to be suppressed or modified in the following manner. 

Louis Philippe, King of the French, to all to whom these pres- 
ents shall come, greeting : 

We have ordained and ordain, that the constitutional charter of 
1 814, as amended by the two chambers on the 7th August, and 
adopted by us on the 9th, be published anew in the following 
terms : 

PUBLIC LAW OF THE FRENCH. 

Art. i. Frenchmen are equal before the law, whatever otherwise 
may be their titles or their rank. 

Art. 2. They contribute in proportion to their fortunes to the 
charges of the state. 

Art. 3. They are all equally admissible to civil and military em- 
ployments. 

Art. 4. Their individual liberty is equally guaranteed. No per- 
son can be either prosecuted or arrested, except in cases provided 
for by the law, and in the form which it prescribes. 

Art. 5. Each one may profess his religion with equal liberty, 
and shall receive for his religious worship the same protection. 

Art. 6. The ministers of the catholic, apostolic and Roman 
religion, professed by the majority of the French, and those of other 
Christian worship, receive stipends from the public treasury. x 

Art. 7. Frenchmen have the right of publishing and causing to 
be printed their opinions, provided they conform themselves to the 
laws. 



1 This article 6 is substituted for the articles 6 and 7 of the old charter, which 
ran thus : 

6. However, the catholic, apostolic and Roman religion, is the religion of the 
state. 

7. The ministers of the catholic, apostolic and Roman religion, and those of 
other Christian confessions, alone receive stipends from the public treasury. 



AND SELF-GOVERNMENT. 547 

The censorship can never be re-established. -1 

Art. 8. All property is inviolable, without exception of that 
which is called national, the law making no difference between 
them. 

Art. 9. The state can exact the sacrifice of property for the good 
of the public, legally proved, but with a previous indemnity. 

Art. 10. All examination into the opinions and votes given 
before the restoration is interdicted, and the same oblivion is 
commanded to be adopted by the tribunals and by the citizens. 

Art. 11. The conscription is abolished. The method of re- 
cruiting the army for land and sea is to be determined by the law. 

FORMS OF THE KING'S GOVERNMENT. 

Art. 12. The person of the king is inviolable and sacred. His 
ministers are responsible. To the king alone belongs executive 
power. 

Art. 13. The king is the supreme head of the state ; commands 
the forces by sea and by land ; declares war, makes treaties of 
peace and alliance and of commerce ; he appoints to all offices in 
public administration, and makes all regulations necessary for the 
execution of the laws, without ever having power either to suspend 
the laws themselves, or dispense with their execution. 

Nevertheless, no foreign troops can be admitted into the service of 
the state without an express law. 2 * 

Art. 14. The legislative power is to be exercised collectively by 
the king, the chamber of peers, arid the chamber of deputies. 3 

Art. 15. The proposition of the laws belongs to the king, to the 
chamber of peers, and to the chamber of depitties. 



1 Article 8 of the old charter : 

The French have the right to publish and to cause to be published their 
opinions, conforming themselves to the laws, which shall prevent the abuse of 
this liberty. 

2 Article 14 of the old charter: 

The king is the supreme head of the state, commands the forces by land and 
sea, declares war, makes treaties of peace, alliance and commerce, appoints to 
all offices of public administration, and makes rules and orders necessary for the 
execution of the laws and the safety of the state. 

3 There was in article 15 of the old charter: and the chamber of deputies of 
the departments. These last three words have been suppressed. 



548 ON CIVIL LIBERTY 

Nevertheless, all the laws of taxes are to be first voted by the 
chamber of deputies. x 

Art. i 6. Every law is to be discussed and freely voted by the 
majority of each of the two chambers. 

Art. 17. If a proposed law b&rejected by one of the three powers, 
it cannot be brought forward again in the same session* 

Art. 18. The king alone sanctions and promulgates the laws. 

Art. 19. The civil list is to be fixed for the duration of the reign 
of the legislative assembly after the accession of the king. 

OF THE CHAMBER OF PEERS. 

Art. 20. The chamber of peers is to form an essential portion 
of the legislative power. 

Art. 21. It is convoked by the king at the same time as the 
chamber of deputies. The session of one begins and ends at the 
same time as that of the other. 

Art. 22. Any assembly of the chamber of peers, which should 
be held at a time which is not that of the session of the chamber 
of deputies, is illicit, and null of full right, except only the case in 
which it is assembled as a court of justice, and then it can only exer- 
cise judicial functions. 3 



1 Art. 15 is in the place of art. 16 and 17 of the old charter, which were 
thus : 

Art. 16. The king proposes the law. 

Art. 17. The proposition of the law is carried, at the pleasure of the king, to 
the chamber of peers or that of the deputies, except the law of taxes, which is 
to be directed to the chamber of deputies. 

2 Art. 17 is substituted for articles 19, 20 and 21, suppressed as useless, after 
the preceding provisions. They were the following : 

Art. 19. The chambers have the right to petition the king to propose a law 
on any subject whatever, and to indicate what seems to them proper the law 
ought to contain. 

Art. 20. This request may be made by each of the chambers ; but, after having 
been discussed in secret committee, it is not to be sent to the other chamber, by 
that which proposes, until after the lapse of ten days. 

Art. 21. If the proposition is adopted by the other chamber, it is to be laid 
before the king; if it is rejected, it cannot be presented again in the same 
session. 

3 This is article 26 of the old charter, augmented by this provision, which was 
not in the former, and the words following have been suppressed : or that it 
should be ordained by the king. 



AND SELF-GOVERNMENT. 549 

Art. 23. The nomination of the peers of France belongs to the 
king. Their number is unlimited ; he can vary their dignities, and 
name them peers for life, or make them hereditary at his pleasure. 

Art. 24. Peers can enter the chamber at twenty-five years of 
age, but have only a deliberative voice at the age of thirty years. 

Art. 25. The chamber of peers is to be presided over by the 
chancellor of France ; and in his absence, by a peer named by the 
king. 

Art. 26. The princes of blood are to be peers by right of birth. 
They are to take their seats immediately behind the president. 1 

Art. 27. The sittings of the chamber of peers are public as that 
of the chamber of deputies * 

Art. 28. The chamber of peers takes cognizance of high treason, 
and of attempts against the security of the state, which is to be 
defined by the law. 

Art. 29. No peer can be arrested but by the authority of the 
chamber, or judged but by it in a criminal matter. 

OF THE CHAMBER OF DEPUTIES. 

Art. 30. The chamber of deputies will be composed of deputies 
elected by the electoral colleges ; the organization of which is to 
be determined by law. 3 

Art. 31. The deputies are to be elected for five years. 4 

Art. 32. No deputy can be admitted into the chamber till he 



1 Art. 30 of the old charter : 

The members of the royal family and the princes of the blood are peers by 
the right of birth ; they sit immediately behind the president j but they have no 
deliberative voice before their twenty-fifth year. 

Art. 31 was thus : 

The princes cannot take their seat in the chamber, but by order of the king, 
expressed for each session by a message, under penalty of rendering everything 
null which has been done in their presence. Suppressed. 

2 All deliberations of the chamber of peers are secret. Art. 32 of the old 
charter. 

3 Art. 36 was thus : 

Every department shall have the same number of deputies which it has pre- 
viously had. Suppressed. 

4 Art. 37 of the old charter: 

The deputies shall be elected for five years, and in such a way that the cham- 
ber is renewed each year by a fifth. 



55o 



ON CIVIL LIBERTY 



has attained the age of thirty years, and if he does not possess the 
other conditions prescribed by the taw. 1 

Art. 33. If, however, there should not be in the department 
fifty persons of the age specified paying the amount of taxes fixed by 
law, their number shall be completed from the persons who pay 
the greatest amount of taxes under the amount fixed by law. 2 

Art. 34. No person can be an elector if he is under twenty-five 
years of age ; and if he does not possess all the other conditions deter- 
mined by the law. 3 

Art. 35. The presidents of the electoral colleges are elected by 
the electors. 4 

Art. 36. The half at least of the deputies are to be chosen from 
those who have their political residence in the departments. 

Art. 37. The president of the chamber of deputies is to be elected 
by the chamber itself at the opening of each session. , 5 

Art. 38. The sittings of the chamber are to be public, but the 
request of five members will be sufficient that it forms itself into a 
secret committee. 

Art. 39. The chamber divides itself into bureaux (committees) 
to discuss the projects of laws, which may have been presented from 
the king. 6 



1 Art. 38 of the old charter : 

No deputy can be admitted into the chamber if he is not forty years old, and 
if he does not pay direct taxes of 1000 francs. 

2 Article 39 of the old charter : 

If, nevertheless, there should not be in the department fifty persons of the indi- 
cated age, paying at least 1000 francs direct taxes, their number will be com- 
pleted by those who pay the highest taxes under 1000 francs; and these may be 
elected concurrently with the others. 

3 Art. 40 of the old charter : 

The electors who concur in electing the deputy cannot have the right of suf- 
frage, if they do not pay a direct tax of 300 francs ; and if they are less than thirty 
years of age. 

4 Art. 41 of the old charter: 

The presidents of the electoral colleges shall be nominated by the king, and 
be, by right, members of the college. 

s Art. 43 of the old charter : 

The president of the chamber of deputies is nominated by the king, from a 
list of five members, presented by the chamber. 

6 In consequence of the initiative, art. 46 and 47 are suppressed, which were 
thus: 

46. No amendment can be made to a law, if it has not been proposed or con- 



AND ' SELF- G O VERNMENT. 5 5 1 

Art. 40. No tax can be established nor imposed, if it has not been 
consented to by the two chambers, and sanctioned by the king. 

Art. 41. The land and house tax can only be voted for one 
year. The indirect taxes may be voted for many years. 

Art. 42. The king convokes every year the two chambers, he 
prorogues them, and may dissolve that of the deputies ; but in this 
cas 4 e he must convoke a new one within the period of three months. 

Art. 43. No bodily restraint can be exercised against a member 
of the chamber during the session, nor for six weeks which precede 
or follow the session. 

Art. 44. No member of the chamber can be, during the session, 
prosecuted or arrested in a criminal matter, except taken in the act, 
till after the chamber has permitted his arrest. 

Art. 45. Every petition to either of the chambers must be made 
in writing. The law interdicts its being carried in person to the 
bar. 

OF THE MINISTERS. 

Art. 46. The ministers can be members of the chamber of peers 
or the chamber of deputies. 

They have, moreover, their entrance into either chamber, and 
are entitled to be heard when they demand it. 

Art. 47. The chamber of deputies has the right of impeaching 
the ministers, or of transferring them before the chamber of peers, 
which alone has the right to judge them. 1 

JUDICIAL REGULATIONS. 

Art. 48. All justice emanates from the king ; it is administered 
in his name by the judges, whom he nominates, and whom he 
institutes. 

Art. 49. The judges named by the king are immovable. 



sented to by the king, and if it has not been sent back and discussed by the 
bureaux. 

47. The chamber of deputies receives all propositions of taxes ; only after 
these laws have been consented to, they may be carried to the chamber of peers. 

1 Article 56 of the old charter is suppressed; it ran thus : 

They cannot be accused except for treason or peculation. Particular laws 
will specify this kind of offences, and will determine how they are to be prose- 
cuted. 



552 ON CIVIL LIBERTY 

Art. 50. The ordinary courts and tribunals existing are to be 
maintained, and there is to be no change but by virtue of a law. 

Art. 51. The actual institution of the judges of commerce is 
preserved. 

Art. 52. The office of justice of peace is equally preserved. 
The justices of peace, though named by the king, are not im- 
movable. 

Art. 53. No one can be deprived of his natural judges. 

Art. 54. There cannot, in consequence, be extraordinary com- 
mittees and tribunals created, under whatever title or denomination 
this ever might be. ■ 

Art. 55. The debates will be public in criminal matters, at least 
when the publicity will not be dangerous to order and decency, and 
in that case the tribunal is to declare so by a distinct judgment. 

Art. 56. The institution of juries is to be preserved ; the changes 
which a longer experience may render necessary can only be effected 
by a law. 

Art. 57. The punishment of confiscation of goods is abolished, 
and cannot be re-established. 

Art. 58. The king has the right to pardon and to commute the 
punishment. 

Art. 59. The civil code, and the actual laws existing that are 
not contrary to the present charter, will remain in full force until 
they shall be legally abrogated. 

PARTICULAR RIGHTS GUARANTEED BY THE STATE. 

Art. 60. The military in actual service, retired officers and 
soldiers, widows, officers and soldiers on pension, are to preserve 
their grades, honors and pensions. 

Art. 61. The public debt is guaranteed. Every sort of engage- 
ment made by the state with its creditors is to be inviolable. 

Art. 62. The old nobility retake their titles. The new preserve 
theirs. The king creates nobles at his pleasure ; but he only grants 
to them rank and honors, without any exemption from the charges 
and duties of society. 



1 Art. 63 of the old charter : 

In consequence there cannot be created extraordinary committees and tribu- 
nals. The jurisdictions prevdiales, if their re-establishment should be found 
necessary, are not comprised under this denomination. 



AND SELF-GOVERNMENT. 553 

Art. 63. The legion of honor is to be maintained. The king 
shall determine its internal regulations and the decorations. 

Art. 64. The colonies are to be governed hy particular laws. 1 

Art. 65. The king and his successors shall swear, at their acces- 
sion, in presence of the two chambers, to observe faithfully the present 
constitutional charter. 2 

Art. 66. The present charter, and the rights it consecrates, shall 
be intrusted to the patriotism and courage of the national guard arid 
all the citizens. 

Art. 67. France resumes her colors. For the future there will be 
no other cockade than the tri-colored cockade. , 3 

Art. 68. All the creations of peers during the reign of Charles 
X. are declared null and void. 

Article 23 of the charter will undergo a fresh examination during 
the session of 1831. 

Art. 69. There will be provided successively by separate laws, 
and that with the shortest possible delay, for the following subjects : 

1. The extension of the trial by jury to offences of the press, 
and political offences. 

2. The responsibility of ministers and the secondary agents of 
government. 

3. The re-election of deputies appointed to public functions with 
salaries. 

4. The annual voting of the army estimates. 

5. The organization of the national guards with the intervention 
of the national guards in the choice of their officers. 

6. Provisions which insure, in a legal manner, the state of 
officers of each grade, by land and sea. 



1 Art. 73 of the old charter : 

The colonies will be governed by particular laws and regulations. 

2 Art. 74 of the old charter : 

The king and his successors shall swear at the coronation, to observe faithfully 
the present constitutional charter. 

3 Arts. 75 and 76 of the old charter are suppressed ; they ran thus : 

75. The deputies of the departments of France who sat in the legislative body, 
at the last adjournment, will continue to sit in the chamber of deputies, until 
replaced. 

76. The first renewal of the fifth of the chamber of deputies will take place 
the latest in the year 1816, according to the order established. 



554 0N CIVIL LIBERTY AND SELF-GOVERNMENT. 

7. Departmental and municipal institutions founded upon an 
elective system. . 

8. Public instruction and the liberty of instruction. 

9. The abolition of the double vote ; the settling of the electoral 
conditions, and that of eligibility. 

Art. 70. All laws and ordinances, inasmuch as they are contrary 
to the provisions adopted by the reform of the charter, are from 
this moment annulled and abrogated. 

We give it in command to our courts and tribunals, administrative 
bodies, and all others, that they observe and maintain the present 
constitutional charter, cause it to be observed, followed and main- 
tained, and in order to render it more known to all, they cause it 
to be published in all municipalities of the kingdom and every- 
where, where it will be necessary, and in order that this be firm 
and stable forever, we have caused our seal to be put to it. 

Done at the Palais-Royal, at Paris, the 14th day of the month 
of August, in the year 1830. 

Signed LOUIS PHILIPPE. 

By the king : 

The Minister Secretary of the State for the department of the 
Interior. 

Signed * Guizof. 

Examined and sealed with the great seal : 

The keeper of the seals, Minister Secretary of the State for the 
department of Justice. 

Signed Dupont (de l'Eure). 



APPENDIX XIII. 

CONSTITUTION OF THE FRENCH REPUBLIC. 

ADOPTED NOVEMBER, 1848. 

In presence of God, and in the name of the French people, the 
National Assembly proclaims : 

I. France has constituted herself a republic. In adopting that 
definite form of government, her proposed aim is to advance with 
greater freedom in the path of civilization and progress, to insure 
that the burdens and advantages of society shall be more and more 
equitably apportioned, to augment the comfort of every individual 
by the gradual reduction of the public expenses and taxes, and by 
the successive and constant action of her institutions and laws 
cause the whole body of citizens to attain, without farther commo- 
tion, a constantly increasing degree of' morality, intelligence, and 
prosperity. 

II. The French republic is democratic, one and indivisible. 

III. It recognizes rights and duties anterior and superior to all 
positive laws. 

IV. Its principles are Liberty, Equality, Fraternity. 

Its basis is, Family, Labor, Property, and Public Order. 

V. It respects the nationality of foreign states, as it causes its 
own to be respected. It undertakes no wars with a view of con- 
quest, and never employs its power against the liberty of any 
people. 

VI. Reciprocal duties bind the citizens to the republic and the 
republic to the citizens. 

VII. It is the duty of the citizens to love their country, serve 
the republic, and defend it at the hazard of their lives ; to partici- 
pate in the expenses of the state, in proportion to their property ; 
to secure to themselves, by their labor, the means of existence, 
and, by prudent forethought, provide resources for the future J to 
co-operate for the common welfare by fraternally aiding each other, 

555 



556 ON CIVIL LIBERTY 

and in the preservation of general order- by observing the moral 
and written laws which regulate society, families, and individuals. 

VIII. It is the duty of the republic to protect the citizen in his 
person, his family, his religion, his property, and his labor, and to 
bring within the reach of all that education which is necessary to 
every man ; it is also its duty, by fraternal assistance, to provide 
the means of existence to necessitous citizens, either by procuring 
employment for them, within the limits of its resources, or by giving 
relief to those who are unable to work and who have no relatives 
to help them. 

For the fulfilment of all these duties, and for the guarantee of 
all these rights, the National Assembly, faithful to the traditions of 
the great Assemblies by whom the French revolution was inaugu- 
rated, decrees the constitution of the republic, as following : 



CONSTITUTION. 
CHAPTER I. 

OF SOVEREIGNTY. 

Art. i. The sovereignty exists in the whole body of French 
citizens. It is inalienable and imprescriptible. No individual, no 
fraction of the people can arrogate to themselves its exercise. 

CHAPTER II. 

RIGHTS OF CITIZENS GUARANTEED BY THE CONSTITUTION. 

Art. 2. No person can be arrested or detained, except as pre- 
scribed by law. 

Art. 3. The dwelling of every person inhabiting the French 
territory is inviolable, and cannot be entered except according to 
the forms and in the cases provided against by law. 

Art. 4. No one shall be removed from his rightful judges — no 
commissions or extraordinary tribunals can be created under any 
pretext, or by any denomination whatsoever. 

Art. 5. The penalty of death for political offences is abolished. 

Art. 6. Slavery cannot exist upon any French territory. 

Art. 7. Every one may freely profess his own religion, and shall 
receive from the state equal protection in the exercise of his wor- 



AND SELF-GOVERNMENT. 



557 



ship. The ministers of the religions at present recognized by law, 
as well as those which may be hereafter recognized, have the right 
to receive an allowance from the state. 

Art. 8. Citizens have the right of associating together and 
assembling peaceably and unarmed, in order to petition or manifest 
their ideas by means of the press or otherwise. The exercise of 
these rights can only be limited by the rights or the liberty of 
others, or for the public security. The press cannot in any case be 
subjected to censorship. 

Art. 9. Education is free. The liberty of teaching is to be ex- 
ercised according to the capacity and morality determined by con- 
ditions of the laws, and under the supervision of the state. This 
superintendence is to be extended to all establishments of education 
and instruction, without any exception. 

Art. 10. All citizens are equally admissible to all public employ- 
ments, without other reason of preference than merit, and according 
to the conditions to be determined by law. All titles of nobility, 
all distinctions of birth, class or caste, are abolished forever. 

Art. 11. All descriptions of property are inviolable; neverthe- 
less, the state may demand the sacrifice of property for reasons of 
public utility, legally proved, and in consideration of a just and 
previous indemnity. 

Art. 12. The confiscation of property can never be re-estab- 
lished. 

Art. 13. The constitution guarantees to citizens the freedom of 
labor and of industry. Society favors and encourages the develop- 
ment of labor by gratuitous primary instruction, by professional 
education, by the equality of rights between the employer and the 
workman, by institutions for the deposit of savings and those of 
credit, by agricultural institutions ; by voluntary associations, and 
the establishment by the state, the departments and the communes, 
of public works proper for the employment of unoccupied laborers. 
Society also will give aid to deserted children, to the sick, and to 
the destitute aged who are without relatives to support them. 

Art. 14. The public debt is guaranteed. Every species of en- 
gagement made by the state with its creditors is inviolable. 

Art. 15. All taxes are imposed for the common good. Every 
one is to contribute in proportion to his means and fortune. 

Art. 16. No tax can be levied or collected except by virtue of 
the law. 



558 ON CIVIL LIBERTY 

Art. 17. Direct taxation is only awarded for one year. Indirect 
taxes may be awarded for several years. 

CHAPTER III. 

OF PUBLIC POWER. 

Art. 18. All public powers, whatever they may be, emanate from 
the people. They cannot be delegated by hereditary descent. 

Art. 19. The separation of powers is the first principle of a free 
government. 

CHAPTER IV. 

OF THE LEGISLATIVE POWER. 

Art. 20. The French people delegate the legislative power to 
one sole assembly. 

Art. 21. The total number of representatives of the people shall 
be 750, including the representatives from Algeria and the French 
colonies. 

Art. 22. This number shall be increased to 900 for assemblies 
called together to revise the constitution. 

Art. 23. Population is the basis for election. 

Art. 24. Suffrage is direct and universal. The act of voting is 
by secret ballot. 

Art. 25. All Frenchmen aged twenty-one, and in the enjoyment 
of their civil and political rights, are electors, without property 
qualifications of any kind. 

Art. 26. All electors are eligible to be elected without reference 
to property qualifications or to place of abode, who are twenty-five 
years of age. 

Art. 27. The electoral law will determine the causes which may 
deprive a French citizen of the right of electing or being elected. 
It will designate those citizens who, exercising or after having 
exercised official functions in a department or territory, cannot be 
elected there. 

Art. 28. The holding of any remunerating public office is incom- 
patible with the trust of a representative of the people. No member 
of the national assembly can be nominated or raised to public 
offices, receiving salary, the appointment to which is in the gift of 
the executive, during the continuance of the legislature. Excep- 
tions to the regulations contained in the two preceding paragraphs 
are to be settled by the organic electoral law. 



AND SELF-GOVERNMENT. 



559 



Art. 29. The conditions of the preceding articles are not appli- 
cable to assemblies elected for the revision of the constitution. 

Art. 30. The elections for representatives shall be by depart- 
ments, and by ballot. The electors shall vote at the chief place 
of their district; nevertheless the district maybe, from local causes, 
divided into several subdivisions, under the forms and in conformity 
with the conditions to be determined by the electoral law. 

Art. 31. The national assembly is elected for the period of three 
years, to be then wholly renewed. Forty-five days at least before 
the term of the legislature, a law shall be passed to fix the period 
of the new elections. If no law is passed within the time prescribed 
by the preceding paragraph, the electors shall have full right to 
assemble and vote on the thirtieth day preceding the close of the 
legislature. The new assembly is convoked by full right for the 
day following that on which the trust of the preceding assembly 
expires. 

Art. 32. The assembly is permanent ; nevertheless it may ad- 
journ to any period which it shall determine. During the con- 
tinuance of the prorogation, a commission, composed of members 
of committees, and twenty-five representatives appointed by the 
assembly, by ballot, having an absolute majority, will have the 
right to convoke the assembly, in cases of emergency. The presi- 
dent of the republic has also the right to convoke the assembly. 
The national assembly will determine the place where it shall hold 
its sessions, and will direct the number and description of the mili- 
tary forces which shall be appointed for its security, and have them 
at its order. 

Art. ^^. Representatives may be re-elected. 

Art. 34. The members of the national assembly are the repre- 
sentatives, not of the department which nominates them, but of the 
whole of France. 

Art. 35. They cannot receive imperative instructions. 

Art. 36. The persons of the representatives of the people are 
inviolable. They cannot be pursued, accused, nor condemned, at 
any time, for opinions uttered within the assembly. 

Art. 37. They cannot be arrested for criminal offences, except- 
ing when taken in the very fact, nor prosecuted, until after permis- 
sion granted for such purpose by the assembly. In case of an 
arrest in the very fact, the matter shall immediately be referred to 
the assembly, which shall authorize or refuse the continuation of 



560 ON CIVIL LIBERTY 

the prosecution. The above regulation to apply also to the case 
of citizens imprisoned at the time of being named representatives. 

Art. 38. Every representative of the people is to receive a 
remuneration, which he is not at liberty to renounce. 

Art. 39. The sittings of the assembly are to be public. Never- 
theless, the assembly may form itself into a secret committee, on the 
requisition of a number of representatives, as settled by the rules. 
Each representative has the right of initiating parliamentary meas- 
ures, which he will do according to the forms determined by the 
regulations. 

Art. 40. The presence of half the members, and also one over, 
is necessary to vote on any law. 

Art. 41. Xo bill (except in cases of urgency) shall be passed 
till after it has undergone three readings, at intervals of not less 
than five days between each reading. 

Art. 42. Every proposition, the object of which is to declare 
the urgency of a measure, must be preceded by an explanation of 
motives. If the assembly is of opinion to accede to the proposi- 
tion, it will fix the time when the report upon the necessity of the 
case shall be represented. On this report, if the assembly admit 
the urgency of the case, it will declare it, and fix the time of the 
debate. If it decides against the urgency of the case, the motion 
will have to go through the usual course. 

CHAPTER V. 

OF THE EXECUTIVE POWER. 

Art. 43. The French people delegates the executive power to a 
citizen, who shall receive the title of president of the republic. 

Art. 44. The president must be born a Frenchman, thirty years 
of age at least, and must never have lost the quality of Frenchman. 

Art. 45. The president of the republic shall be elected for four 
years, and shall not be eligible for re-election until after an interval 
of four years. Neither shall the vice-president, nor any of his rela- 
tions or kindred of the president, to the sixth degree inclusive, be 
eligible for re-election after him, within the same interval of time. 

Art. 46. The election shall take place on the second Sunday in 
the month of May. If, in the event of death or resignation, or 
from any other cause, a president be elected at any other period, 
his power shall expire on the second Sunday of the month of May, 



AND SELF-GOVERNMENT. 561 

in the fourth year following his election. The president shall be 
elected by secret ballot, and by an absolute majority of votes, by 
the direct suffrage of all the electors of the French departments and 
of Algeria. 

Art. 47. The records of the electoral operations shall be trans- 
mitted immediately to the national assembly, which shall determine 
without delay upon the validity of the election, and shall proclaim 
the president of the republic. If no candidate shall have obtained 
more than one-half of the votes given, and at the least two millions 
of votes, or if the conditions required by article 44 are not fulfilled, 
the national assembly shall elect the president of the republic by an 
absolute majority, and by ballot, from among the five candidates 
eligible who shall have obtained the greatest number of votes. 

Art. 48. Before entering upon his functions, the president of 
the republic shall, in the presence of the assembly, take an oath of 
the tenor following : "In presence of God, and before the French 
people, represented by the national assembly, I swear to remain 
faithful to the democratic republic, one and indivisible, and to fulfil 
all the duties which the constitution imposes upon me. ' ' 

Art. 49. He shall have the right of presenting bills through the 
ministers in the national assembly. He shall watch over and secure 
the execution of the laws. 

Art. 50. He shall have the disposal of the armed force, without 
ever being allowed to command it in person. 

Art. 51. He cannot cede any portion of the territory, nor dis- 
solve or prorogue the national assembly, nor suspend the operation 
of the constitution and the laws. 

Art. 52. He shall annually present, by a message to the national 
assembly, an exposition of the general state of the affairs of the 
republic. 

Art. 53. He shall negotiate and ratify treaties. No treaty 
shall be definitive until after it has been approved by the national 
assembly. 

Art. 54. He shall watch over the defence of the state, but he 
shall not undertake any war without the consent of the national 
assembly. 

Art. 55. He shall possess the right of pardon ; but he shall 
not have the power to exercise this right until after he has taken 
the advice of the council of state. Amnesties shall only be granted 
by an express law. The president of the republic, the ministers, 

36 



562 ON CIVIL LIBERTY 

as well as all other persons condemned by the high court of justice, 
can only be pardoned by the national assembly. 

Art. 56. The president of the republic shall promulgate the laws 
in the name of the French people. 

Art. 57. Laws of emergency shall be promulgated three days 
after, and other laws one month after their passing, counting from 
the day on which they were passed by the national assembly. 

Art. 58. Previous to the day fixed for the promulgation, the 
president may, by a message assigning reasons therefor, demand a 
reconsideration of the law. The assembly shall then reconsider it, 
its resolution becomes definitive, and shall be transmitted to the 
president of the republic. In such a case, the promulgation shall 
be made within the delay allowed to* laws of emergency. 

Art. 59. In default of the promulgation of laws by the presi- 
dent, within the period fixed by the preceding articles, the presi- 
dent of the assembly shall provide for their due promulgation. 

Art. 60. The credentials of envoys and ambassadors from for- 
eign powers shall be addressed to the president of the republic. 

Art. 61. He shall preside at all national solemnities. 

Art. 62. He shall be furnished with a residence at the expense 
of the republic, and shall receive an allowance of six hundred 
thousand francs per annum. 

Art. 63. He shall reside in the place in which the national as- 
sembly holds its sessions, and may not leave the continental terri- 
tory of the republic without being authorized by law so to do. 

Art. 64. The president of the republic shall have power to 
appoint and revoke the appointment of the ministers. He shall 
appoint and revoke, in a council of ministers, the diplomatic agents, 
commanders-in-chief of the armies of the republic by sea and land, 
prefects and the chief commandant of the national guards of the 
Seine, the governors of Algeria and the other colonies, the attorney- 
general and all other functionaries of superior rank. He shall ap- 
point and dismiss, at the suggestion of the competent minister, ac- 
cording to the terms and conditions fixed by law, all other officers 
and functionaries of the government of secondary rank. 

Art. 65. He shall have the right of suspending, for a period not 
exceeding three months, the agents of the executive power elected 
by the people. He shall not be able to dismiss them unless by the 
advice of the council of the state. The law will determine the 
case in which agents, having been dismissed, may be declared not 



AND SELF-GOVERNMENT. 563 

to be eligible again for the same office. Such a declaration of in- 
eligibility can only be pronounced by a formal judgment. 

Art. 66. The number of ministers and their several powers, 
duties and emoluments shall be settled by the legislative power. 

Art. 67. The acts of the president, excepting those by which he 
appoints or dismisses the ministers of the republic, shall be of no 
effect, unless countersigned by a minister. 

Art. 68. The president of the republic, the ministers, the agents, 
and all the other depositaries of public authority, shall be respon- 
sible, each in so far as he is concerned, for all the acts of the gov- 
ernment and of the administration. Every measure by which the 
president of the republic shall dissolve or prorogue the assembly, 
or interpose any obstacle to the exercise of its public trust, shall be 
deemed a crime of high treason. By this sole act, the president 
becomes divested of his functions, and the people are bound not to 
yield obedience to him ; the executive power is thereby transferred 
in full authority to the national assembly. The judges of the 
high court of justice shall immediately assemble, on pain of for- 
feiture of their offices. They shall call together a jury, in some 
place to be by them designated, in order to proceed to trial and 
judgment upon the president and his accomplices ; and they shall 
themselves appoint a magistrate to be charged with the functions 
of state attorney. A law shall determine the other cases of re- 
sponsibility, as well as the forms and conditions of the prosecution 
of them. 

Art. 69. The ministers shall have admission into the national 
assembly, and shall be heard whenever they require it, and they 
may also obtain the assistance of commissioners, who shall have 
been appointed by a decree of the president of the republic. 

Art. 70. There shall be a vice-president of the republic, to be 
appointed by the national assembly, from a list of three candidates 
presented by the president within the month succeeding his elec- 
tion. The vice-president shall take the same oath as the president. 
The vice-president shall not be appointed from among the relations 
or kindred of the president to the sixth degree inclusive. Should 
the president by any cause be prevented from officiating, the vice- 
president will represent him for the time being. If the presidency 
shall become vacant by the death of the president, his dismissal 
from office, or from other causes, a new election for president shall 
take place within a month. 



564. ON CIVIL LIBERTY 

■ CHAPTER VI. 

OF THE COUNCIL OF STATE. 

Art. 71. There shall be a council of state, of which the vice- 
president of the republic shall of right be the president. 

Art. 72. The members of this council shall be appointed for six 
years by the national assembly. The half of this council shall be 
renewed in the first two months of each new legislature, by secret 
ballot, and by an absolute majority. They shall be indefinitely 
re-eligible. 

Art. 73. Such of the members of the council of state, who shall 
have been appointed from among the members of the assembly, 
shall be immediately replaced as representatives of the people. 

Art. 74. The members of the council of state cannot be dis- 
missed, except by the national assembly and at the suggestion of 
the president. 

Art. 75. The council of state shall be consulted upon all bills 
or laws proposed by the government, which, according to law, must 
be presented for their previous examination ; and also upon parlia- 
mentary bills which the assembly may send to them for their exami- 
nation. It shall prepare the rules of public administration, and 
will alone make those regulations with regard to which the national 
assembly have given it a special delegation. It shall exercise over 
the public administrations all the powers of control and of super- 
intendence which are conferred upon it by law. The law will 
determine the other powers and duties of the council. 

CHAPTER VII. 

OF THE INTERIOR ADMINISTRATION. 

Art. 76. The division of the territory into departments, arron- 
dissements, districts and communes shall be maintained. Their 
present limits shall not be changed, except by law. 

Art. 77. There shall be — 1. In each department an adminis- 
tration composed of a prefect, a general council, and a council of 
prefecture. 2. In each arrondissement/a sub-prefect. 3. In each 
district, a district-council; nevertheless, only a single district- 
council shall be established in any city which is divided into several 
districts. 4. In each commune, an administration, composed 
of a mayor, his assistants, and a municipal council. 



AND SELF-GOVERNMENT. 565 

Art. 78. A law shall determine the composition and duties of 
the general councils, the district councils, and the municipal coun- 
cils, as well as, also, the manner of appointing the mayors ahd their 
assistants. 

Art. 79. The general councils and the municipal councils shall 
be elected by the direct vote of all citizens living in the depart- 
ment or district : each district shall elect one member of the gen- 
eral council ; a special law shall regulate the forms of election in 
the department of the Seine, in the city of Paris, and in cities 
containing a population of more than twenty thousand souls. 

Art. 80. The general councils, the district councils, and the 
municipal councils may be dissolved by the president of the repub- 
lic, with the advice of the council of state ; the law will fix the 
period within which a new election shall be held. 

CHAPTER VIII. 

OF THE JUDICIARY POWER. 

Art. 81. Justice shall be awarded, gratuitously, in the name of 
the French people. The proceedings shall be public, except in 
cases where publicity may be detrimental either to the public order 
or public morals, in which case the court shall declare the same by 
a formal judgment. 

Art. 82. Trial by jury shall be continued in criminal cases. 

Art. 83. The decision upon all political offences, and upon all 
offences committed by means of the press, appertains exclusively to 
the jury. The organic laws shall determine the tribunal and powers 
in relation to offences and defamation against private individuals. 

Art. 84. The jury alone shall decide upon the question of 
damages claimed on account of offences by the press. 

Art. 85. The justices of peace and their assistants, the judges of 
the first instance and of appeal, the members of the court of cassa- 
tion and of the court of accounts, shall be appointed by the presi- 
dent of the republic, according to a system of candidateship on 
conditions which shall be regulated by the organic laws. 

Art. 86. The magistrates shall be appointed by the president of 
the republic. 

Art. 87. The judges of the first instance and of appeal, the 
members of the court of cassation and of the court of accounts 
shall be appointed for life. They shall not be dismissed or sus- 



5 66 ON CIVIL LIBERTY 

pended, except after judgment, nor retire with a pension, except 
for causes and according to proceedings appointed by law. 

Art. l 88. The councils of war and of revision of the armies by 
sea and land, the maritime tribunals, the tribunals of commerce, 
the pmd Iiommes, and other special tribunals, shall retain their 
present organization and their present functions, until the law shall 
decide otherwise. 

Art. 89. Conflicts of privileges and duties between the adminis- 
trative and the judicial authority shall be regulated by a special 
tribunal, composed of members of the court of cassation and of 
counsellors of state, to be appointed, every three years, in equal 
number, by the respective bodies to which they belong. This 
tribunal shall be presided over by the minister of justice. 

Art. 90. Appeals for incompetence, or excess of power against 
the decrees of the court of accounts, shall be carried before the 
tribunal of conflictive jurisdiction. 

Art. 91. A high court of justice shall decide, without appeal, 
demur, or recourse of annulment, in all accusations made by the 
national assembly against the president of the republic or the 
ministers. It shall likewise, in the same way, try all cases of per- 
sons accused of crimes, attempts, or plots against the internal and 
external safety of the state, which the assembly may have sent be- 
fore it. Except in the case provided for in article 68, it shall not 
be called together unless by decree of the national assembly, which 
shall also designate the city in which the court shall hold its sittings. 

Art. 92. The high court shall be composed of five judges and 
of thirty-six jurymen. Every year, in the first fifteen days of the 
month of November, the court of cassation shall appoint from 
among its members, by secret ballot and an absolute majority, the 
judges of the high court, the number to be five judges and two 
supplementary judges. The five judges, who are thus called upon 
to sit, will themselves select their president. The magistrates per- 
forming the functions of the public ministry shall be designated by 
the president of the republic, and, in the event of the accusation 
of the president or his ministers, by the national assembly. The 
jury, to the number of thirty-six, and four supplementary jurymen, 
shall be taken from among the members of the general councils of 
the departments. Representatives of the people shall not be com- 
petent to form part of these juries. 

Art. 93. When a decree of the national assembly shall have 



AND SELF-GOVERNMENT. 567 

ordered the formation of the high court of justice, as also in the 
cases provided for in the 68th article, on the requisition of the 
president or of one of the judges, the president of the court of 
appeal, and in default of that court, the president of the tribunal 
of the first instance of the chief judiciary court of the department, 
shall draw lots in public assembly for the name of a member of the 
general council. 

Art. 94. On the day appointed for the trial, if there are less than 
sixty jurymen present, the number shall be filled up by supple- 
mentary jurymen, drawn by lot by the president of the high court 
of justice, from among the names of the members of the general 
council of the department in which the court holds its sitting. 

Art. 95. Those jurymen who shall not have given an adequate 
excuse for absence, shall be condemned to a fine of not less than 
one thousand francs, and not exceeding ten thousand, and to be 
deprived of their political rights during five years at the utmost. 

Art. 96. Both the accused and the public accuser shall have the 
right to challenge, as in ordinary cases. 

Art. 97. The verdict of the jury pronouncing the accused guilty 
cannot be rendered except by a majority of two-thirds. 

Art. 98. In all cases regarding the responsibility of the minis- 
ters, the national assembly may, according to the circumstances, 
send the accused minister to be tried either before the high court 
of justice or by the ordinary tribunals for civil indemnities (or 
damages). 

Art. 99. The national assembly and the president of the repub- 
lic may, in all cases, transmit the examination of the acts of any 
functionary (except of the president himself) to the council of state, 
whose report shall be made public. 

Art. 100. The president of the republic can only be brought to 
trial before the high court of justice. Except as is provided for 
by article 68, he cannot be tried unless upon accusation brought 
against him by the national assembly, and for crimes and misde- 
meanors, which shall be determined by law. 

CHAPTER IX. 

OF THE PUBLIC FORCES. 

Art. 101. The public force is instituted for the purpose of de- 
fending the state against enemies from without, and to insure, 



568 ON CIVIL LIBERTY 

internally, the maintenance of order, and the execution of the laws. 
It is composed of the national guard and of the army by sea and 
by land. 

Art. 102. Every Frenchman, save in exceptions determined by 
the law, owes to his country his services in the army and in the 
national guard. The privilege of every citizen to free himself from 
personal military service shall be regulated by the law of recruit- 
ment. 

Art. 103. The organization of the national guard, and the con- 
stitution of the army, shall be regulated by law. 

Art. 104. The public force is essentially obedient. No armed 
force can deliberate. 

Art. 105. The public force employed to maintain order in the 
interior can only act upon the requisition of the constituted au- 
thorities, according to the regulations prescribed by the legislative 
power. 

Art. 106. A law shall determine those cases in which the state 
of siege shall be declared, and shall regulate the forms and deter- 
mine the effects of such a measure. 

Art. 107. No foreign troops can be introduced into the French 
territory without the previous assent of the national assembly. 

CHAPTER X. 

SPECIAL REGULATIONS. 

Art. 108. The legion of honor is maintained; its statutes shall 
be revised, and made to accord with the constitution. 

Art. 109. The territory of Algeria, and of the colonies, is de- 
clared to be French territory, and shall be governed by their sepa- 
rate laws until a special law shall place them under the provisions 
of the present constitution. 

Art. 1 10. The national assembly confides the trust of this pres- 
ent constitution, and the rights it consecrates, to the guardianship 
and patriotism of every Frenchman. 

CHAPTER XL 

OF THE REVISION OF THE CONSTITUTION. 

Art. hi. Whenever, in the last year of a legislature, the 
national assembly shall have expressed the wish that the constitu- 



AND SELF-GOVERNMENT. 569 

tion should be modified, in whole or in part, this revision shall be 
entered upon in the following manner : The wish expressed by the 
assembly shall not be converted into a definitive resolution until 
after three successive deliberations held upon the subject, at the 
interval of one month between each deliberation, and the measure 
shall only be carried by a vote of three-fourths of the assembly. 
The number of votes must be five hundred at the least. The 
assembly for revision shall only be appointed for three months. It 
shall only engage in the special revision for which it has been 
assembled ; nevertheless, in cases of emergency, it may provide for 
legislative necessities. 

CHAPTER XII. 

TRANSITORY ARRANGEMENTS. 

Art. 112. The provisions of the codes, laws, and regulations, 
now in force, and which are not in contradiction with the present 
constitution, shall remain in force until otherwise provided by law. 

Art. 113. All the authorities constituted by the present laws 
shall continue in the exercise of their present duties until the 
promulgation of the organic laws which relate to them. 

Art. 114. The law of judiciary organization will determine the 
particular mode for the appointment and first composition of the 
new tribunals. 

Art. 115. After the vote upon the constitution, the constituent 
national assembly shall proceed to draw up the organic laws, which 
shall be determined by a special law for that purpose. 

Art. 116. The first election of a president of the republic shall 
take place in conformity with the special law passed by the national 
assembly on the 28th of October, 1848. 



APPENDIX XIV. 

THE PRESENT CONSTITUTION OF FRANCE. 

When I wrote the article Constitution for the Encyclopaedia 
Americana, which was before the French revolution of 1830, I 
classed constitutions under three general heads: 1. Those estab- 
lished by the sovereign power, real or so called. These were sub- 
divided into constitutions established by a sovereign people for 
their own government, as ours are ; and into such as are granted, 
theoretically at least, by the plenary power of an absolute monarch ; 
such as the then existing French charter was, a fundamental law 
called by the French octroyed. 2. Constitutions formed by con- 
tracts between nations and certain individuals whom they accept as 
rulers on distinct conditions. 3. Constitutions forming a compact 
between a number of states. The present constitution of France 
is not included in either of these classes. Its genesis, as the reader 
well knows, was that, first, an individual acquired absolute power 
by a conspiracy or coup d'etat, then caused the people to vote 
whether they would grant him plenary power to prescribe a consti- 
tution ; he received the power by above seven millions of votes, and 
issued the following document, copied from the constitution which 
Napoleon the First had prescribed at the beginning of this century. 
If, then, the reader insists upon calling this a constitution — we cer- 
tainly do not call France at present a constitutional country — we 
may call it a constitution per saltum, for it was in former times one 
of the different ways of electing a pope, or the head of a great 
society, such as the Templars, to elect one individual with the right 
of appointing the chief, and this was called electing per saltum, by 
a leap. I also divided constitutions into cumulative constitutions, 
such as the constitution of England, or that of ancient Rome, and 
into enacted (or written) constitutions, such as ours are. The 
present constitution of France can again be classed neither under 
the one nor the other head. It may, perhaps', be called decreed, 
or by any name the reader prefers. It is difficult to find an appro- 
5/0 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 571 

priate name for a thing which is the result of a confused mixture of 
ideas, of absolutism, popular sovereignty, violence, of breaking of 
oaths and prescribing of others, of coup d'etat, and ratification by 
those whose work was destroyed by the soldiery, and by the idea 
of the "incarnation" of popular absolute power in one person. 
Louis Napoleon has been called the incarnation of a great principle. 
I do not pretend to find a philosophical name for this product. 
Probably the whole constitution belongs to the " Napoleonic 
ideas," of which we read so much at this moment ; or we may call 
it in future an imperatorial or Csesarean constitution. 

The following, then, is the present French Constitution, as it 
appeared in the official paper, the Moniteur, of January 15, 1852, 
preceded by the proclamation of Louis Napoleon. 

LOUIS NAPOLEON, 

PRESIDENT OF THE REPUBLIC. 

In the name of the French People.* 

Frenchmen ! When, in my proclamation of the 2d of December, 
I stated to you in all sincerity what were, according to my ideas, 
the vital conditions of government in France, I had not the preten- 
sion, so common in our days, of substituting a personal theory for 
the experience of ages. On the contrary, I sought in the past what 
were the best examples to follow, what men had given them, and 
what benefit had resulted therefrom. 

Having done so, I considered it only logical to prefer the pre- 
cepts of genius to the specious doctrines of men of abstract ideas. 
I took as model the political institutions which already, at the 
beginning of the present century, in analogous circumstances, 
strengthened society when tottering, and raised France to a high 
degree of prosperity and grandeur. 

I selected as model those institutions which, in place of disap- 
pearing at the first breath of popular agitations, were overturned 
only by all Europe being coalesced against us. 

In a word, I said to myself, since France has existed for the last 



1 The reader will find, on a subsequent page, that the whole of this constitu- 
tion was retained under the empire, with the exception of a few passages, relating 
to the hereditary part of the empire. 



572 ON CIVIL LIBERTY 

fifty years only in virtue of the administration, military, judicial, 
religious, and financial organization of the consulate and the em- 
pire, why should we not adopt likewise the political institutions of 
that period ? As they were created by the same mind, they ought 
to bear in themselves the same character of nationality and practical 
utility. 

In fact, as I stated in my proclamation, our present society, it is 
essential to declare, is nothing else than France regenerated by the 
revolution of '89 and organized by the emperor. Nothing remains 
of the old regime but great reminiscences and great benefits. But 
all that was then organized was destroyed by the revolution, and all 
that has been organized since the revolution, and which still exists, 
was done by Napoleon. 

We have no longer either provinces, ox pays d'etat, or parliaments, 
or intendants, or farmers general, or feudal rights, or privileged 
classes in exclusive possession of civil and military employments, 
or different religious jurisdiction. 

In so many things incompatible with itself had the revolution 
effected a radical reform, but without founding anything definitive. 
The first consul alone re-established the unity, the various ranks, 
and the veritable principles of government. They are still in vigor. 

Thus, the administration of France was intrusted to prefects, sub- 
prefects, and mayors, who substituted unity for the commissions of 
the directory ; and, on the contrary, the decision of business given 
to councils from the commune to the department. Thus, the magis- 
tracy was strengthened by the immovability of the judges, by the 
various ranks of the tribunals ; justice was rendered more easy by 
the delimitation of attributions, from the justice of peace to the 
court of cassation. All that is still existing. 

In the same way our admirable financial system, the bank of 
France, the establishment of budgets, the court of accounts, the 
organization of police, and our military regulations, date from the 
same period. 

For fifty years it is the code Napoleon which had regulated the 
interests of citizens amongst themselves ; and it is still the con- 
cordat which regulates the relations between the state and the 
church. 

In fine, the greatest part of the measures which concern the pro- 
gress of manufactures, commerce, letters, sciences, and the arts, from 
the regulations of the Theatre Francaise to those of the Institute — 



AND SELF-GOVERNMENT. 573 

from the institution of the prud ' homines to the creation of the legion 
of honor — were fixed by decrees of that time. 

It may then be affirmed that the framework of our social edifice 
is the work of the emperor, and that it has resisted his fall and 
three revolutions. 

Why, with the same origin, should not the political institutions 
have the same chances of success ? 

My conviction was long formed on the point, and it is on that 
account that I submit to your judgment the principal bases of a 
constitution, borrowed from that of the year 8. When approved 
by you, they will become the foundation of our political consti- 
tution. 

Let us examine what the spirit of them is. 

In our country, monarchical as it has been for eight hundred 
years, the central power has always gone on augmenting. The 
royalty destroyed the great vassals; the revolutions themselves 
swept away the obstacles which opposed the rapid and uniform 
exercise of authority. In this country of centralization, public 
opinion has unceasingly attributed to the head of the government 
benefits as well as evils. And so, to write at the head of a charter 
that that chief is irresponsible, is to be against the public feeling — 
is to want to establish a fiction, which has three times vanished at 
the noise of revolutions. 

The present constitution, on the contrary, declares that the chief 
whom you have elected is responsible before you ; and that he has 
always the right to appeal to your judgment, in order that, in 
solemn circumstances, you may continue to him your confidence, 
or withdraw it. 

Being responsible, his action ought to be free and unshackled. 
Thence the obligation of his having ministers who may be the 
honored and puissant auxiliaries of his thought, but who no longer 
form a responsible council, composed of mutually responsible mem- 
bers, a daily obstacle to the particular impulse of the head of the 
state, the expression of a policy emanating from the chambers, and 
by that very circumstance exposed to frequent changes, which pre- 
vent all spirit of unity and all application of a regular system. 

Nevertheless, the higher a man is placed the more independent 
he is, and the greater confidence the people have placed in him the 
more he has need of enlightened and conscientious councils. Thence 
the creation of a council of state, henceforward a veritable council 



574 0N CIVIL LIBERTY 

of the government, first wheel in our organization, a collection of 
practical men, elaborating bills in special commissions, discussing 
them with closed doors, without oratorical ostentation in general 
assembly, and presenting them afterwards for acceptance to the 
legislative body. 

Thus, the government is free in its movements and enlightened 
in what it does. 

What is now to be the control exercised by the assemblies ? 

A chamber, which takes the title of legislative body, votes the 
laws and the taxes. It is elected by universal suffrage, without 
scruiin de liste. The people, selecting each candidate separately, 
can more easily appreciate the merits of each. 

The chamber is not to be any longer composed of more than 
about 260 members. That is a first guaranty of the calm of the 
deliberations, for only too often the inconsistency and ardor of 
passions have been seen to increase in assemblies in proportion to 
their number. 

The report of the sittings, which is intended to inform the na- 
tion of what is going on, is no longer, as formerly, delivered to the 
party spirit of each journal ; an official publication, drawn up by 
the care of the president of the chamber, will be alone permitted. 

The legislative body discusses freely each law, and adopts or 
rejects it. But it cannot introduce all of a sudden those amend- 
ments which often disarrange the whole economy of a system and 
the ensemble of the original project. Still more, it does not possess 
that parliamentary initiative which was the source of such grave 
abuses, and which allowed each deputy to substitute himself at every 
turn for the government, by presenting projects the least carefully 
studied and inquired into. 

The chamber being no longer in presence of the ministers, and 
the various bills being supported by speakers belonging to the 
council of state, time is not lost in vain interpellations and pas- 
sionate debates, the only object of which was to overturn the minis- 
ters, in order to place others in their stead. 

Thus, then, the deliberations of the legislative body will be inde- 
pendent, but the causes of sterile agitations will have been sup- 
pressed, and proper time and deliberation given to each modification 
of the law. The representatives of the nation will, in fact, ma- 
turely perform their serious functions. 

Another assembly takes the name of senate. It will be com- 



AND SELF-GOVERNMENT. 575 

posed of the elements which, throughout the whole country, create 
legitimate influences — an illustrious name, fortune, talent, and ser- 
vices rendered. 

The senate is no longer, like the chamber of peers, the pale re- 
flection of the chamber of deputies, repeating, at some days' inter- 
val, the same discussion in another tone. It is the depository of 
the fundamental compact, and of the liberties compatible with the 
constitution ; and it is only with respect to the grand principles on 
which our society is based that it examines all the laws, and pro- 
poses new ones to the executive power. It intervenes, whether to 
resolve every grave difficulty which might arise during the absence 
of the legislative body, or to explain the text of the. constitution, 
or to insure what is necessary for its being acted on. It has the 
right to annul every arbitrary and illegal act, and, thus enjoying 
that consideration which belongs to a body exclusively occupied 
with the examination of great interests, or the application of grand 
principles, it occupies in the state the independent, salutary and 
conservative position of the ancient parliaments. 

The senate will not be, like the chamber of peers, transformed 
into a court of justice ; it will preserve its character of supreme 
moderator ; for disfavor always reaches political bodies, when the 
sanctuary of the legislators become a criminal tribunal. The im- 
partiality of the judge is often called in doubt, and he loses a 
portion of his prestige in public opinion, which sometimes goes 
the length of accusing him of being the instrument of passion 
or of hatred. 

A high court of justice, chosen from amongst the higher magis- 
trates, having for jurymen members of the councils-general through- 
out all France, will alone decide in cases of attentats against the 
head of the state and public safety. 

The emperor used to say to the council of state: " A 'constitu- 
tion is the work of time ; and too large a margin cannot be left to 
ameliorations." Consequently, the present constitution has fixed 
only what it was impossible to leave uncertain. It has not inclosed 
within an impassable circle the destinies of a great people ; it has 
left to change a margin sufficiently wide to allow, in great crises, 
other means of safety to be employed than the disastrous expedient 
of revolutions. 

The senate can, in concert with the government, modify all that 
is not fundamental in the constitution; but as to the modifications 



576 ON CIVIL LIBERTY 

effected in its primary bases, sanctioned by your suffrages, they 
cannot become definitive until after they have received your ratifi- 
cation. 

Thus the people remains always master of its destiny, as nothing 
fundamental can be effected independently of its will. 

Such are the ideas and principles which you have authorized me 
to carry into application. May the constitution confer on our 
country calm and prosperous days ! May it prevent the return of 
those intestine struggles, in which the victory, however legitimate 
it may be, is always dearly purchased ! May the sanction, which 
you have bestowed on my efforts, receive the benediction of heaven ! 
In that case, peace will be insured at home and abroad, my prayers 
will be granted, and my mission accomplished ! 

LOUIS NAPOLEON BONAPARTE. 

Palace of the Tuileries, January 14, 1852. 



Constitution made in virtue of the powers delegated by the French 
People to Louis Napoleon Bonaparte by the vote of the 20th and 
21st of December, 1851. 

The president of the republic — 

Considering that the French people has been called on to pro- 
nounce its opinion on the following resolution : 

The people wish for the maintenance of the authority of Louis 
Napoleon Bonaparte, and give him the powers necessary to make a 
constitution, according to the bases laid down in his proclamation 
of the 2d December. 

Considering that the bases proposed to the acceptance of the 
people were : 

1. A responsible chief appointed for ten years. 

2. Ministers dependent on the executive power alone. 

3. A council of state, formed of the most distinguished men, to 
prepare the laws and support the discussion of them before the 
legislative body. 

4. A legislative body, to discuss and vote the laws, elected by uni- 
versal suffrage, without scrutin de liste, which falsifies the election. 



AND SELF- G VERNMENT. ' 577 

5. A second assembly, formed of the most illustrious men of the 
country, as an equipoising power {ponvoir ponder ■ateur,') guardian 
of the fundamental compact and of public liberties. 

Considering that the people have replied affirmatively by seven 
million five hundred thousand votes, 

Promulgates the constitution, the tenor of which is as follows : 

CHAPTER I. 

Art. i. The constitution admits, confirms, and guarantees the 
great principles proclaimed in 1789, and which are the bases of the 
public right of Frenchmen. 

CHAPTER II, 

FORMS OF THE GOVERNMENT OF THE REPUBLIC. 

Art. 2. The government of the French Republic is confided for 
ten years to Prince Louis Napoleon Bonaparte, the actual president 
of the republic. 

Art. 3. The president of the republic governs by means of min- 
isters, of the council of state, of the senate, and of the legislative 
body. 

Art. 4. The legislative power is exercised collectively by the 
president of the republic, the senate, and the legislative body. 

CHAPTER III. 

OF THE PRESIDENT OF THE REPUBLIC. 

Art. 5. The president of the republic is responsible to the French 
people, to whom he has always the right to make an appeal. 

Art. 6. The president of the republic is the chief of the state; 
he commands the land and sea forces, declares war, makes treaties 
of peace, alliance, and commerce, appoints to all employs, and 
makes the regulations and decrees necessary for the execution of 
the laws. 

Art. 7. Justice is rendered in his name. 

Art. 8. He alone has the initiative of laws. 

Art. 9. He has the right of granting pardon. 

Art. 10. He sanctions and promulgates the laws and the senatus 
consultum. 

Art. 11. He presents every year to the senate, and to the legis- 
lative body, by a message, the state of the affairs of the republic. 

37 



578 'ON CIVIL LIBERTY 

Art. 12. He has the right to declare the state of siege in one 
or several departments, on condition of referring it to the senate 
within the shortest possible delay. The consequences of the state 
of siege are regulated by law. 

Art. 13. The ministers depend only on the chief of the state 
— they are only responsible for the acts of the government as 
far as they are individually concerned in them ; there is no joint 
responsibility among them, and they can only be impeached by 
the senate. 

Art. 14. The ministers, the members of the senate, of the legis- 
lative body, and of the council of state, the officers of the land and 
sea forces, the magistrates and public functionaries, take the fol- 
lowing oath : / swear obedience to the constitution and fidelity to the 
president. 

Art. 15. A senatus-consultum fixes the sum allowed annually to 
the president of the republic during the whole continuance of his 
functions. 

Art. 16. If the president of the republic dies before the expira- 
tion of his term of office, the senate is to convoke the nation, in 
order to proceed to a fresh election. 

Art. 17. The chief of the state has the right, by a secret act 
deposited in the archives of the senate, to point out to the people 
the names of the citizens whom he recommends to the interest of 
France to the confidence of the people and to their suffrages. 

Art. 18. Until the election of the new president of the republic, 
the president of the senate governs with the co-operation of the 
ministers in functions, who form themselves into a council of 
government, and deliberate by a majority of votes. 

CHAPTER IV. 

OF THE SENATE. 

Art. 19. The number of senators shall not exceed 150; it is 
fixed for the first year at 80. 

Art. 20. The senate is composed : 1, of cardinals, marshals, and 
admirals; 2, of citizens whom the president of the republic may 
think proper to raise to the dignity of senators. 

Art. 21. The senators are appointed for life. 

Art. 22. The functions of senator are gratuitous; nevertheless, 
the president of the republic may grant to senators, on account of 



AND SELF-GOVERNMENT. 579 

services rendered, or of their position with regard to fortune, a 
personal donation, which cannot exceed 30,000 francs per annum. 

Art. 23. The president and the vice-presidents of the senate are 
named by the president of the republic, and chosen from among 
the senators. They are appointed for one year. The salary of the 
Dresident of the senate is fixed by a decree. 

Art. 24. The president of the republic convokes and prorogues 
the senate. He fixes the duration of its sessions by a decree. The 
sittings of the senate are not public. 

Art. 25. The senate is the guardian of the fundamental compact 
and of public liberties. No law can be promulgated without being 
submitted to it. 

Art. 26. The senate may oppose the promulgation: 

1. Of laws which may be contrary to, or be an attack on, the 
constitution, on religion, on morals, on freedom of worship, on in- 
dividual liberty, on the equality of citizens in the eye of the law, on 
the inviolability of property, and on the principle of the immova- 
bility of the magistracy. 

2. Of those which may comprise the defence of the territory. 
Art. 27. The senate regulates by a senatus-consultum : 

1. The constitution of the colonies and of Algeria. 

2. All that has not been provided for by the constitution, and 
which is necessary for its march. 

3. The sense of the articles of the constitution which give rise 
to different interpretations. 

Art. 28. These senatus-consulta will be submitted to the sanc- 
tion of the president of the republic, and promulgated by him. 

Art. 29. The senate maintains or annuls all the acts which are 
referred to it as unconstitutional by the government, or denounced 
for the same cause by the petitions of citizens. 

Art. 30. The senate may, in a report addressed to the president 
of the republic, lay down the bases of bills of great national interest. 

Art. 31. It may also propose modifications in the constitution. 
If the proposition is adopted by the executive power, it must be 
stated by a senatus-consultum. 

Art. 32. Nevertheless, all modifications in the fundamental basis 
of the constitution, such as they were laid down in the proclama- 
tion of the 2d December, and adopted by the French people, shall 
be submitted to universal suffrage. 

Art. ^^. In case of the dissolution of the legislative body, and 



580 



ON CIVIL LIBERTY 



until a new convocation, the senate, on the proposition of the presi- 
dent of the republic, shall provide by measures of urgency for all 
that is necessary for the progress of the government. 

CHAPTER V. 

OF THE LEGISLATIVE BODY. 

Art. 34. The election has for its basis the number of the popu- 
lation. 

Art. 35. There shall be one deputy to the legislative body for 
every 35,000 electors. 

Art. 36. The deputies are to be elected by universal suffrage, 
without scrutin de liste. 

Art. 37. They will not receive any payment. 

Art. 38. They are named for six years. 

Art. 39. The legislative body discusses and votes bills and taxes. 

Art. 40. Any amendment adopted by the committee charged to 
examine a bill shall be sent back without discussion to the council 
of state by the president of the legislative body. If the amendment 
is not adopted by the council of state, it cannot be submitted to the 
discussion of the legislative body. 

Art. 41. The ordinary sessions of the legislative body last three 
months ; its sittings are public ; but, at the demand of five mem- 
bers, it may form itself into a secret committee. 

Art. 42. The report of the sittings of the legislative body by 
the journals, or by any other means of publication, shall only con- 
sist in the reproduction of the minutes of the sitting, drawn up at 
its conclusion under the direction of the president of the legislative 
body. 

Art. 43. The president and vice-presidents of the legislative 
body are named by the president of the republic for one year; 
they are to be chosen from among the deputies. The salary of the 
president of the legislative body will be fixed by a decree. 

Art. 44. The ministers cannot be members of the legislative 
body. 

Art. 45. The right of petition can only be exercised as regards 
the senate. No petition can be addressed to the legislative body. 

Art. 46. The president of the republic convokes, adjourns, pro- 
rogues, and dissolves the legislative body. In the event of its being 
dissolved, the president of the republic must convoke a new one 
within a delay of six months. 



AND SELF-GOVERNMENT. 581 

CHAPTER VI. 

OF THE COUNCIL OF STATE. 

Art. ,47. The number of councillors of state in ordinary service 
is from forty to fifty. 

Art. 48. The councillors of state are named by the president of 
the republic, and may be dismissed by him. 

Art. 49. The council of state is presided over by the president 
of the republic, and in his absence by the person whom he appoints 
as vice-president of the council of state. 

Art. 50. The council of state is charged, under the direction of 
the president of the republic, to draw up bills and the regulations 
of public administration, and to solve the difficulties which may 
arise in administrative matters. 

Art. 51. It supports, in the name of the government, the dis- 
cussion of bills before the senate and legislative body. The coun- 
cillors of state charged to speak in the name of the government are 
to be named by the president of the republic. 

Art. 52. The salary of each councillor of state is 25,000 francs. 

Art. 53. The ministers have rank, sitting, and deliberative votes 
in the council of state. 

CHAPTER VII. 

OF THE HIGH COURT OF JUSTICE. 

Art. 54. A high court of justice shall try, without appeal, or 
without recourse to cassation, all persons who may be sent before 
it charged with crime, attentats t or conspiracies against the presi- 
dent of the republic, and against the internal and external safety 
of the state. It can only be formed in virtue of a decree of the 
president of the republic. 

Art. 55. A senatus-consultum will determine -the organization 
of this high court. 

CHAPTER VIII. 

GENERAL AND TRANSITORY CLAUSES. 

Art. 56. The provisions of the codes, laws and regulations, 
which are not contrary to the present constitution, remain in vigor 
until they shall have been legally revoked. 

Art. 57. The municipal organization shall be determined by 
law. The mayors shall be named by the executive power, and may 
be chosen from those not belonging to the municipal council. 



582 ON CIVIL LIBERTY 

Art. 58. The present constitution will be in vigor from the day 
on which the great bodies of the state shall have been constituted. 
The decrees issued by the president of the republic, from the 2d 
December up to that period, shall have the force of law. 

Given at the Palace of the Tuileries, this 14th day of January, 
1852. 

LOUIS NAPOLEON. 
Sealed with the great seal. 

The reader must remember that all the decrees, which were issued 
after the coup d'etat, and before its "ratification" by the people, 
were considered as ratified likewise ; for instance, the still existing 
law by which the government transports members of secret political 
societies, without trial, and by authority of which many other per- 
sons deemed dangerous were transported to Cayenne. The same 
is to be said of the stringent law of the press according to which 
every paper exists at the will of the government, with regulations 
which may become utterly ruinous for the editor and publisher. 
The minute regulations of the coats and trowsers of the senators 
and members of the legislative corps need not probably be men- 
tioned here as organic laws; but on March 22d, 1852, appeared 
the following important decree: 

Louis Napoleon, President of the French Republic : 

Considering article 4 of the constitution, and seeing that at the 
moment when the senate and legislative body are about to enter on 
their first session, it is important to regulate their relations with 
the president of the republic and the council of state, and to 
establish, according to the constitution, the organic conditions of 
their works, decrees : 

THIRD DIVISION.— OF THE LEGISLATIVE BODY. 
CHAPTER I. 

MEETING OF THE LEGISLATIVE BODY, FORMATION AND ORGANIZATION OF THE 
BUREAUS, AND VERIFICATION OF THE POWERS. 

Art. 41. The legislative body is to meet on the day named by 
the decree of convocation. 

Art. 42. At the opening of the first sitting the president of the 



AND SELF-GOVERNMENT. 583 

legislative body, assisted by the four youngest members present, 
who will fill the functions of secretaries during the session, will 
proceed to form the assembly into seven bureaus, drawn by lot. 

Art. 43. These seven bureaus, named for the whole of the ses- 
sion, will each be presided over by the oldest member, the youngest 
performing the office of secretary. 

Art. 44. They will immediately proceed to the examination 
of the minutes of the election of the members distributed by the 
president of the legislative body, appointing one or several of 
their members to bring up a report thereof in a public sitting. 

Art. 45. The assembly examines these reports: if the election 
be declared valid, the member when present immediately takes the 
oath prescribed by article 14 of the constitution; if absent, at his 
first appearance, after which the president of the legislative body 
pronounces his admission, and the deputy who has not taken the 
oath within fifteen days of his election is considered as dismissed. 
In case of absence the oath may be taken by writing, and in this 
case must be addressed by the deputy to the president of the legis- 
lative body, within the delay above mentioned. 

Art. 46. After the verification of the returns, and without wait- 
ing for the decision on contested or adjourned elections, the presi- 
dent of the legislative body shall make known to the president of 
the republic that the legislative body is constituted. 

CHAPTER II. 

PRESENTATION, DISCUSSION, AND VOTE OF BILLS. 

Art. 47. Bills presented by the president of the republic are to 
be presented and read to the legislative body by councillors of state 
appointed for that purpose, or transmitted, by order of the presi- 
dent of the republic, by the minister of state to the president of 
the legislative body, who causes them to be read at the public 
sitting. These bills will be printed, distributed, and placed on the 
order of the day of the bureaus, which will discuss them and name 
by ballot, and by a simple majority, a committee of seven members 
to report on them. 

Art. 48. Any amendment arising from the initiative of one or 
more members, must be handed to the president, and be by him trans- 
mitted to the committee. No amendment can, however, be received 
after the report shall have been presented at the public sitting. 



584 ON CIVIL LIBERTY 

Art. 49. The authors of the amendment have a right to be 
heard before the committee. 

Art. 50. If the amendment is adopted by the committee, it 
transmits the tenor of it to the president of the legislative body, 
who sends it to the council of state, and the report of the com- 
mittee is suspended until the council of state has pronounced its 
opinion on it. 

Art. 51. If the opinion of the council of state, transmitted to 
the committee through the president of the legislative body, is favor- 
able, or a new wording proposed by the council of state be adopted 
by the committee, the text of the bill to be discussed in public 
sitting shall be modified conformably to the new wording adopted. 
If the opinion, on the contrary, is unfavorable, or if the new wording 
proposed by the council of state is not adopted by the committee, 
the amendment will be considered as not having been offered. 

Art. 52. The report of the committee on the bill examined by 
it shall be read in a public sitting, and printed and distributed at 
least twenty-four hours - before the discussion. 

Art. 53. At the sitting fixed by the order of the day, the dis- 
cussion shall open on the ensemble of the bill, and afterwards on 
the different articles or chapters, if it be a law on finance. There 
is never any occasion to deliberate on the question of deciding if 
the discussion of the articles is to be passed to, as they are succes- 
sively put to the vote by the president. The vote takes place by 
assis et leve, and if the result is doubtful, a ballot is proceeded to. 

Art. 54. If any article is rejected, it is sent back to' the com- 
mittee for examination. Each deputy then, in the form specified 
in articles 48 and 49 of the present decree, presents such amend- 
ments as he pleases. Should the committee be of opinion that a 
new proposition ought to be made, it transmits the tenor of it to 
the president of the legislative body, who forwards it to the coun- 
cil of state. The matter is then proceeded on in conformity with 
articles 51, 52, and 53 of the present decree, and the public vote 
which then takes place is definitive. 

Art. 55. After the vote on the articles, a public vote on the 
ensemble of the bill takes place by the absolute majority. The 
presence of the majority of the deputies is necessary to make the 
vote valid. Should less than that number be present, the vote 
must be recommenced. Bills of local interest are voted by assis et 
leve, unless the ballot be called for by ten members at least. 



AND SELF-GOVERNMENT. 585 

Art. 56. The legislative body assigns no reasons for its decisions, 
which are expressed in the following form : " The legislative body 
has adopted;" or "The legislative body has not adopted." 

Art. 57. The minute of the bill adopted by the legislative body 
is signed by the presidents and secretaries, and deposited in the 
archives. A copy of the same, similarly signed, is transmitted to 
the president of the republic. 

CHAPTER III. 

MESSAGES AND PROCLAMATIONS ADDRESSED TO THE LEGISLATIVE BODY BY 
THE PRESIDENT OF THE REPUBLIC. 

Art. 58. These are brought up and read in open sitting by the 
ministers or councillors of state named for that purpose. These 
messages or proclamations cannot be discussed or voted upon unless 
they contain a proposition to that effect. 

Art. 59. The proclamations of the president of the republic, 
adjourning, proroguing, or dissolving the legislative body, are to 
be read in public sitting, all other business being suspended, and 
the members are immediately afterwards to separate. 

Art. 60. The president of the legislative body announces the 
opening and closing of each sitting. At the end of each sitting, 
after having consulted the members, he names the hour of sitting 
for the following day, and the order of the day, which are posted 
up in the assembly. This order of the day is immediately for- 
warded to the minister of state, the president of the legislative 
body being responsible for all notices and communications being 
duly forwarded to him. 

Art. 61. No member can speak without having asked and ob- 
tained leave of the president, and then only from his place. 

Art. 62. The members of the council of state appointed in the 
name of the government to support the discussion of the laws are 
not subject to the formality of speaking in their turn, but whenever 
they require it. 

Art. 63. The member called to order for having interrupted 
cannot be allowed to speak. If the speaker wanders from the 
question, the president may call him back to it. The president 
cannot allow any one to speak on the call to the question. If the 
speaker twice called to the question in the same speech shall con- 
tinue to wander from it, the president consults the assembly to 
ascertain whether the right of speaking shall not be interdicted to 



586 ON CIVIL LIBERTY 

the speaker for the rest of the sitting on the same question. The 
decision takes place by assis et leve without debate. 

Art. 64. The president alone calls to order the speaker who 
may interrupt it. The right to speak is accorded to him who, on 
being called to order, submits and demands to justify himself; he 
alone obtains the right to speak. When a speaker has been twice 
called to order in the same speech, the president, after having 
allowed him to speak to justify himself, if he demands it, consults 
the assembly to know if the right of speaking shall not be inter- 
dicted to the speaker for the rest of the sitting on the same ques- 
tion. The decision is taken by assis et leve without debate. 

Art. 65. All personalities and all signs of approbation or dis- 
approbation are interdicted. 

Art. 66. If a member of the legislative body disturbs order, 
he is called to order by name by the president ; if he persists, the 
president orders the call to order to be inscribed in the minutes. 
In case of resistance, the assembly, on the proposition of the presi- 
dent, pronounces, without debate, exclusion from the house for a 
period which cannot exceed five days. The placarding of this de- 
cision in the department in which the member whom it concerns 
was elected may be ordered. 

Art. 67. If the assembly becomes tumultuous, and if the presi- 
dent cannot calm it, he puts on his hat. If the disorder continues, 
he announces that he will suspend the sitting. If calm be not 
then re-established, he suspends the sitting during an hour, during 
which the deputies assemble in their respective bureaus. On the 
expiration of the hour the sitting is resumed ; but, if the tumult 
recommences, the president breaks up the sitting and postpones it 
to the next day. 

Art. 68. The demands for the order of the day, for priority, and 
for an appeal to the standing orders, have the preference over the 
principal question, and suspend the discussion of it. Orders of 
the day are never motives. The previous question — that is to say, 
that there is no ground for deliberation — is put to the vote before 
the principal question. It cannot be demanded on propositions 
made by the president of the republic. 

Art. 69. The demands for secret sittings, authorized by article 
14 of the constitution, are signed by the members who make them, 
and placed in the hands of the president, who reads them, causes 
them to be executed, and mentioned in the minutes. 



AND SELF-GOVERNMENT. 587 

Art. 70. When the authorization required by article 11 of the 
law of the 2d February, 1852, shall be demanded, the president 
shall only indicate the object of the demand, and immediately 
refer it to the bureaus, which shall nominate a committee to examine 
whether there be grounds for authorizing a prosecution. 

CHAPTER IV. 

MINUTES. 

Art. 71. The drawing up of the minutes of the sittings is placed 
under the high direction of the president of the legislative body, 
and confided to special clerks nominated by him, and liable to 
dismissal by him. The minutes contain the names of the members 
who have spoken, and the resume of their opinions. 

Art. 72. The minutes are signed by the president, read by one 
of the secretaries at the following sitting, and copied on two regis- 
ters, signed also by the president. 

Art. 73. The president of the legislative body regulates, by 
special order, the mode of communicating the minutes to the news- 
papers, in conformity with article 42 of the constitution. 

Art. 74. Any member may, after having obtained the authori- 
zation of the assembly, cause to be printed and distributed, at his 
own cost, the speech he may have delivered. An unauthorized 
printing and distribution shall be punished by a fine of from 5oof. 
to 5ooof. against the printers, and of from 5f. to 5 oof. against the 
distributors. 

We read in the Constitutional : " It is, as already stated, at the 
Tuileries, in the Salle des Marechaux, that the sitting of the senate 
and legislative body on the 29th will be held. The prince-presi- 
dent, surrounded by his aides-de-camp, his orderly officers, his 
ministers, and the council of state, will be placed on a raised plat- 
form ; opposite the president of the republic will be, on one side 
the senate, and on the other the legislative body. The prince- 
president will deliver a speech. A form of an oath will then be 
read, and each member of the senate and of the legislative body, 
on his name being called over, will pronounce from his place the 
words Je le jure ! The clergy, the magistracy, and the diplomatic 
body will be represented at this solemnity. A small number of 
places will be reserved in an upper gallery for persons receiving 
invitations." 



APPENDIX XV. 



REPORT OF THE FRENCH SENATORIAL COMMITTEE ON THE 
PETITIONS TO CHANGE THE REPUBLIC INTO AN EMPIRE, 
IN NOVEMBER, 1852, 1 AND THE SENATUS-CONSULTUM 
ADOPTED IN CONFORMITY WITH IT. 

Messieurs les Senateurs : France, attentive and excited, now 
demands from you a great political act — to put an end to her 
anxieties and to secure her future. 

But this act, however serious it may be, does not meet with any 
of those capital difficulties which hold in suspense the wisdom of 
legislators. You know the wishes expressed by the councils gen- 
eral, the councils of arrondissement, and the addresses of the com- 
munes of France : wishes for stability in the government of Louis 
Napoleon, and for return to a political form which has struck the 
world by the majesty of its power and by the wisdom of its laws. 
You have heard that immense petition of a whole people rushing 
on the steps of its liberator, and those enthusiastic cries, which 
we may almost call a plebiscite by anticipation, proceeding from 
the hearts of thousands of agriculturists and workmen, manufac- 
turers and tradesmen. Such manifestations simplify the task of 
statesmen. There are circumstances in which fatal necessities pre- 
vent the firmest legislator from acting in accordance with public 
opinion and with his own reason ; there are others where he 
requires a long consideration in order to solve questions on which 
the country has not sufficiently decided. You, gentlemen, are not 



1 This report was read by Mr. Troplong, chairman of the committee. It is 
universally ascribed to him, and Mr. Troplong is now president of the senate. 
Whether this remarkable paper be considered as a political creed or confiteor, or 
as a piece of attempted logic to connect certain occurrences and account for sur- 
prising turns, or as a high state paper of singular shallowness — in whatever light 
it may be viewed, it will be allowed on all hands that it fully deserves preserva- 
tion. 

588 



ON CIVIL LIBERTY AND SELF-GOVERNMENT. 589 

exposed either to this constraint or to this embarrassment. The 
national will presses and supplicates you, and your exalted expe- 
rience tells you that in yielding to her entreaties you will con- 
tribute to replace France in the paths which are suitable to her 
interests, to her grandeur, and to the imperious necessities of her 
situation. All this is in fact explained by the events which take 
place before you. 

After great political agitations, it always happens that nations 
throw themselves with joy into the arms of the strong man whom 
Providence sends to them. It was the fatigue of civil wars which 
made a monarch of the conqueror of Actium ; it was the horror 
of revolutionary excesses, as much as the glory of Marengo, which 
raised the imperial throne. In the midst of the recent dangers of 
the country, this strong man showed himself, on the 10th of 
December, 1848, and on the 2d of December, 185 1, and France 
confided to him her standard, which was ready to perish. If she 
has declared her will to confide it to him forever in this memorable 
journey, which was only one suite of triumphs, it is because, by his 
courage and by his prudence, the man has shown himself equal to 
the task ; it is because, when a nation feels herself tormented by 
the agitations of a stormy government, a necessary reaction leads 
it towards him who can best secure order, stability and repose. 

Louis Napoleon, therefore, is in this wonderful situation, that 
he alone holds in his hands these inestimable gifts. He has in the 
eyes of France, his immense services, the magic of his popularity, 
the souvenirs of his race, the imperishable remembrance of order, 
of organization, and of heroism, which make the hearts of all 
Frenchmen beat. He again revives in the eyes of Europe the 
greatest name of modern days, no more for the military triumphs 
for which his history is so rich, but for chaining down the political 
and social tempests, for endowing France with the conquests of 
peace, and for strengthening and fertilizing the good relations of 
states. Both at home and abroad it is to him that is attached a 
vast future of pacific labor and of civilization. That future must 
not be delivered to the chance of events and to the surprise of 
factions. 

That is why France demands the monarchy of the emperor ; that 
is to say, order in revolution, and rule in democracy. She wished 
it on the 10th December, when the artifices of an inimical consti- 
tution prevented the people from expressing their opinion. She 



590 



ON CIVIL LIBERTY 



wished it again on December 20, when the moderation of a noble 
character prevented its being demanded. But now the public 
sentiment overflows like a torrent ; there are moments when en- 
thusiasm has also the right of solving questions. For some time 
past visible signs announced what must be the mission of Louis 
Napoleon, and the foreseeing reason of statesmen put itself in ac- 
cordance with the popular instinct in order to fix the character of 
it. After the bitter sarcasm which put the heir to a crown at the 
head of the republic, it was evident that France, still democratic 
from her habits, never ceased to be monarchical in her instincts, 
and that she wished for the re-establishment of the monarchy in 
the person of the prince who revealed himself to her as the con- 
ciliator of two ages and of two minds, the line of union of the 
government and of the people, the monarchical symbol of organ- 
ized democracy. 

At the end of the last century, the preponderance of the demo- 
cratic element gave rise to a belief in speculative or ardent minds 
that France ought to mark the new era into which she had entered 
by a divorce between her government and the monarchical form. 
The republic was borrowed from the souvenirs of antiquity. But 
in France political imitations seldom succeed. Our country, 
although taxed with frivolity, is invincibly attached to certain 
national ideas and to certain traditional habits, by which it pre- 
serves the originality of which it is proud. The republic could 
not acclimatize itself on the French soil. It perished from its 
own excesses, and it only went into those excesses because it was 
not in the instincts of the nation. It was but an interval, brilliant 
abroad, and terrible at home, between two monarchies. 

At that period, glory had raised to power one of those men who 
found dynasties and who traverse ages. It is on that new stem 
that France saw flourish a monarchy suitable to modern times, and 
which yielded to no other in its grandeur and in its power. Was 
it not a great lesson to see a similar fortune reserved, fifty years 
after, for a second trial of the republican form ? Is it not a striking 
example of the perseverance of the French mind in things which 
are like the substance of her political life? Is not the proof com- 
plete and decisive ? 

It will be the more so, as the imperial monarchy has all the 
advantages of the republic without its dangers. The other mon- 
archical regimes (the illustrious services of which we will not 



AND SELF-GOVERNMENT. 591 

depreciate) have been accused of having placed the throne too far 
from the people, and the republic, boasting of its popular origin, 
skilfully entrenched itself against them in the masses, who believed 
themselves to be forgotten and overlooked. But the empire, 
stronger than the republic on democratic grounds, removes that 
objection. It was the government the most energetically supported 
and the most deeply regretted by the people. It is the people 
who have again found it in theii 1 memory to oppose it to the 
dreams of ideologists and to the attempts of perturbators. On 
the one hand, it is the only one which can glorify itself in the 
right recognized by the old monarchy, "that it is to the French 
nation that it belongs to choose its king;" on the other, it is the 
only one which has not had quarrels to settle with the people. 
When it disappeared in 18 14, it was not by a struggle of the 
nation against its government. The chances of an unequal 
foreign war brought about that violent divorce. But the people 
have never ceased to see in the empire its emanation and its work; 
and they placed it in their affections far above the republic — an 
anonymous and tumultuous government, which they remember 
much more by the violence of its proconsuls than by the victories 
which were the price of French valor. 

That is why the Napoleonic monarchy absorbed the republic a 
first time, and must absorb it a second time. The republic is vir- 
tually in the empire, on account of the contract-like character of 
the institution, and of the communication and express delegation 
of power by the people. But the empire is superior to the republic, 
because it is also the monarchy ; that is to say, the government of 
all confided to the moderating action of one, with hereditary suc- 
cession as a condition, and stability as its consequence. Monarchy 
has the excellent quality of yielding admirably to all the progress 
of civilization • by turns feudal, absolutist, and mixed ; always old 
and always modern, it only remains to it to reopen the era of its 
democratic transformation, which was inaugurated by the emperor. 
That is what France now wishes ; it is what is asked of you by a 
country fatigued with Utopian ideas, incredulous with respect to 
political abstractions, and whose genius, a union of sound sense and 
poesy, is so constituted that it only believes in power under the 
figure of a hero or a prince. 

Even if the love of Frenchmen for monarchy be only a preju- 
dice, it must be respected ; a people can only be governed in 



5Q2 ON CIVIL LIBERTY 

accordance with its ideas. But it must in particular be respected, 
because it is inspired by the most essential wants and the most 
legitimate interests of the country. 

France is a great state which wishes to preserve at home and 
abroad the force which a vast territory and thirty-five millions of 
inhabitants give. She is both agricultural and commercial. Not- 
withstanding the fertility of her soil, she would be poor if manu- 
factures were not to add immense personal to real capital, and if 
the tastes for polite enjoyments and moderate luxury did not give 
to labor an aliment always new. But labor, in order to arrive at 
the result of its enterprises, should be seconded by so many ad- 
vances of funds, and such a persevering continuance of efforts, that 
all success would escape it if it were interrupted or troubled by the 
storms of disquieting and subversive policy. It demands, there- 
fore, stability of institutions, as the source of confidence and the 
mother of credit. 

All these conditions of a regular and prosperous life the mon- 
archy procures to France ; any other form can only compromise 
them. 

Monarchy is the government of great states, to which institu- 
tions made for duration are marvellously suitable, as the most solid 
foundations are required for a vast edifice. The republic, on the 
contrary, is only the government of small states, if we except the 
United States of America, which, by their geographical position, 
form an exception to all rules, which, besides, are only a federa- 
tion ; a republic has never been able to establish itself except in 
small nations, in which the embarrassments of that difficult and 
complicated form of government are corrected by the small extent 
of territory and population. 

Ancient Rome, so far from contradicting this rule, fully confirms 
it. The repubVc was only in the city and for the city. Beyond it 
there were only avaricious masters and oppressed subjects. If ever 
France can be said to have had a sort of neighborhood with the 
republic, it was in the middle ages, when the republican spirit, ex- 
tinguished from the time of the Caesars, had become awakened in 
a part of Europe ; when France was only a chess-board of almost 
independent provinces ; and when the feudal principalities were in 
all parts menaced by the communal movement. But since that 
movement all the interior action of France has removed her from 
the republican form. She, in particular, separated from it, when 






AND SELF-GOVERNMENT. 593 

she gave herself a united territory and thirty-five millions of inhab- 
itants living under the same laws, in the same country, and united 
by an infinite chain of dependent interests, which the same move- 
ment of circulation causes to terminate in a sole centre. Such a 
people is not to be shaken, as were the citizens of a single city, 
even if called Athens or Rome. A country which lives by its 
labor, and not by the labor of slaves and presents from the state, 
cannot be occupied with speeches of the forum, with the permanent 
agitation of comitia, with the anxieties of politics always in ebulli- 
tion. This fever, to which democratic republics give the name of 
political life, cannot with impunity be communicated to a nation 
whose splendor particularly consists in the pacific development of 
its wealth, and in the regular and intelligent activity of its private 
interests. 

Our fathers learned these truths in the rude school of public and 
private misfortunes. They compose all the interior policy of the 
commencement of this century. 1 Why should incorrigible innova- 
tors have in these latter times inflicted the too palpable demonstra- 
tion of them upon us ? We have seen altars raised to instability 
and to periodical convulsions — the two plagues of the social body ; 
we have seen laws made to reduce to solemn precepts the febrile 
and terrible crisis which may ruin a people; we have seen the 
vessel of the state launched on an unknown sea, without a fixed 
point to guide itself by, without an anchor to cast out, and no one 
can say what would have become of the future of France, if 
Providence, watching over her, had not raised up the man of 
intrepid heart who extended his hand to her. 

France, with full knowledge of what she is doing, intends to 
return to her natural state ; she longs to find again her real posi- 
tion and to resume her equilibrium. The French people, in its 
admirable common sense, is not so infatuated with its superior 
qualities that it is not aware of its weak points. It feels itself variable 
in its impressions, prompt to be worked on, and easy to be led 
away. And because it distrusts the rapidity of a first movement, it 
seeks a fixed point in its institutions, and desires to be retained on 
a stable and solid basis. The French democracy has sometimes 
been compared to that of Athens. We have no objection to the 



1 See the speeches delivered in the Tribunal on the return to monarchy in 
1804. 

38 



594 ON CIVIL LIBERTY 

comparison as far as politeness and elegance of mind are concerned, 
but we in all other respects utterly disclaim the similitude. The 
Greek democracies were nothing but a perpetual flux and reflux, 
never accepting the corrective of their levity. They were, besides, 
idle and grasping, living on the civic oboli and distributions of 
food. On the other hand, the French democracy, of a more mas- 
culine and more haughty character, does not look to the state for 
the care of its well-being; it depends on its own efforts for support, 
and most joyfully submits to the eternal law of God — daily labor. 
Its speculations comprise the whole world ; it cultivates the earth 
with its free hands ; it furrows the mighty deep with its vessels ; it 
multiplies its industrial creations, engenders capital, and renders the 
future tributary to its able and immense combinations. When a 
nation thus founds its enterprise on credit and durability, when 
sometimes not less than half a century is necessary to it to reap the 
benefit of its operations, it is not the institutions of a day that can 
give it any hope of their success. It would be senseless if it did 
not desire to make the moving sphere of its interests turn round 
the motionless axis of a monarchy. 

It is true that in France equality is an object of absolute worship, 
and a monarchy has, as its very first condition, the privileged 
existence of those grand and rare individualities which God raises 
above their fellows to form dynasties, and which are less human 
beings than the personification of a people and the concentrated 
radiation of a civilization. But equality, such as we conceive it in 
France, admits without jealousy those providential grandeurs, ren- 
dered legitimate by state reasons, below which it finds its level. 
At Rome and Athens equality consisted in rendering each citizen 
admissible to the supreme authority ; and it is therefore that men 
considered all equality at an end when Augustus had converted the 
republic into a monarchy. 1 In France we considered it as saved 
and confirmed forever, under the reign of the emperor. The rea- 
son is, that in this country of equality there is nothing that is less 
supported than the government of one's equals ; because equality 
is there fully satisfied in holding everything in its grasp, places, 
credit, wealth, and renown, and in having a wide and open road 
before it to arrive at everything except that extreme point of power, 



1 Tacitus : " Omnes, exuta equalitate, jussa principis adspectare." — Annal. 
i. 4. 



AND SELF-GOVERNMENT. 



595 



that inaccessible summit, which the care of the public tranquillity- 
has placed high above all private competition. By that the 
democracy wonderfully agrees with the monarchy, and that union 
is so much the more solid that common sense unites with the habits 
of the people in cementing it. 

But should cavilling minds, believing themselves more wise than 
the whole country, bring forward as an objection to the desire 
expressed for the hereditary empire, the inconveniences which 
minorities and bad princes may, at certain intervals, produce in 
monarchical states, we would reply that all human institutions con- 
tain within themselves certain defects and weaknesses. The mon- 
archy has not the privilege of perfection ; it has simply, for France, 
the merit of an incontestable superiority over the system of per- 
petual election, which only offers an eternal series of struggles and 
hazards, and which solves one difficulty only for the purpose of 
immediately leaving another in suspense. 

Some ancient states, believing that they were improving on the 
monarchical system, had placed in sovereign and immovable assem- 
blies that element of stability which dynasties represent. But 
have not such assemblies also had their moments of weakness? 
Does not their history exhibit melancholy instances of venality or 
tyranny? Has not their baseness given them insolent and seditious 
guardians? And in the point of view of moral responsibility, 
which is one of the great checks on the conscience, there is not 
the slightest comparison between a man and an assembly. In 
assemblies, the responsibility of the body effaces that of the indi- 
viduals ; and as a collective responsibility is very nearly illusory, it 
comes to pass that that irresponsibility, which sometimes constitutes 
the force and independence of assemblies, is also the cause of their 
excesses. In a prince, on the contrary, the responsibility is un- 
divided and inevitable, and presses with all its weight on the side 
of duty. In fine, when evil creeps into a sovereign political body, 
it continues there as a precedent, increases as a tradition, and the 
thing itself can only be kept up by keeping up the evil. On the 
contrary, if evil glides to the throne, it causes alarm only by tem- 
porary and intermittent perils, which are, besides, extenuated by 
the institutions and the modifications which are more easily effected 
in the case of a man than in that of an assembly. The feeble 
Louis XIII. was followed by the grand Louis XIV. ; and, besides, 



596 ON CIVIL LIBERTY 

Louis XIII. is, in the eyes of posterity, covered by his minister, 
Richelieu. 

The general considerations appear to us to prove sufficiently that 
the national sentiment which addresses itself to you, gentlemen, as 
to sage mediators between the people and the prince, is neither a 
frivolous caprice nor a fleeting infatuation. Behind the fascination 
of a great name, and above the gratitude which is felt for the acts 
of a noble and patriotic courage, there are grand thoughts, power- 
ful interests, and an admirable intuitive perception of the public 
wants. France, gentlemen, desires to have the life of a great 
nation, and not that precarious and sickly existence which wastes 
away the social body. During the last four years, whilst subjected 
to perilous experiments, she has known how to correct by her good 
sense the evils of a deplorable situation. But it is necessary that 
such a situation should be brought to a close. Up to the present 
time, she had been able to find, in the midst of the tempests which 
assailed her, only transitory gleams of safety, on which no future 
prosperity could possibly be based. At present, she is about to 
enter the port, to found, by means of the fortunate pilot whom she 
greets with joy, the edifice of her prosperity on the solid ground 
of monarchy. 

Let us now look to the details of the draft of the senatus-con- 
sultum. 

Louis Napoleon will take the name of Napoleon III. It is that 
name which re-echoed in the acclamations of the people ; it is the 
name which was inscribed on the triumphal arches and trophies. 
We do not specially select it ; we merely accept it from a natural 
and spontaneous election. It has, besides, that profound good 
sense which is always to be met with in the wonderful instincts of 
the people. It is a homage to Napoleon I., whom the people never 
forgets ; and it is a pious remembrance for his youthful son, who 
was constitutionally proclaimed emperor of the French, and whose 
reign, short as it was, has not been eifaced by the obscure existence 
of the exile. It solves for the future the question of succession, 
and signifies that the empire will be hereditary after Louis Napo- 
leon, as it has been for himself. In fine, it connects the political 
phase to which we owe our safety with the glorious name which 
was also the safety of past times. 

And yet, by the side of the traditional element, contemporary 
events preserve their proper value and their peculiar signification. 



AND SELF-GOVERNMENT. 597 

If Louis Napoleon is called on at present to resume the work of 
his uncle, it is not merely because he is the heir of the emperor, 
but because he deserves to be so ; it is on account of his devoted- 
ness to France, and of that spontaneous and personal action which 
has rescued the country from the horrors of anarchy. It is not 
sufficient for him to be the heir of the emperor ; he must be again 
elected, for the third time, by the people. Thus the succession and 
the election will be in accord to double his force, the modern fact 
rendering the old one young and vigorous by the puissance of a 
reiterated consent and a second contract. 

The senatus-consultum next invests Louis Napoleon with the 
right to adopt an heir, in default of a direct successor. Adoption, 
which is a common right in private families, cannot be an excep- 
tion in dynastic families ; for, when no natural heir exists, it is a 
principle in public law that the choice of the monarch belongs 
to the people. But that rule is that of ordinary times, and cannot 
suit in an absolute manner an order of things which again resumes 
a new course after a long interruption, and in the midst of the most 
extraordinary circumstances. 

Louis Napoleon, the depositary of the confidence of the people, 
charged by it to draw up a constitution, can, on infinitely stronger 
grounds, receive the mandate to provide for certain eventualities, 
and to prevent certain crises in which that constitution might 
perish. The strokes of nature have been often terrible in reign- 
ing families, and have set at naught the councils of wisdom. The 
French people will not imagine that it makes too great a sacri- 
fice of its rights in abandoning itself once more to the prudence 
of the prince whom it has made the arbiter of its destinies. This 
provision, besides, is borrowed from the imperial constitution. 
The empire which revives ought not to be less powerful in its 
means than was the empire at its commencement. And in order 
to remain within the letter and the spirit of that precedent, the 
senatus-consultum proposes to you not to admit of such adoption, 
except for the male descendants, natural and legitimate, of the 
brothers of Napoleon I. The right of unlimited adoption would 
be in manifest contradiction with the popular wish for the re- 
establishment of the empire, which is the guiding star of our de- 
liberations. In fact, the empire is inseparable from the name of 
Bonaparte ; and cannot be conceived without a member of that 
family with which the new form of the monarchy was stipulated in 



598 ON CIVIL LIBERTY 

France. Everything ought to remain consistent in the work which 
we are considering. 

But above that combination, solely of a political character, 
France places a hope which more than anything constitutes her 
faith in the future ; and that is, that, at no distant period, a wife 
will take her place on the throne which is about to be raised 
and will give to the emperor scions worthy of his great name 
and of this great country. That debt was imposed on the prince 
on the day when the cries of ''Vive 1'Empereur" hailed him on 
his passage ; and he will accept it virtually but necessarily the 
day when the crown will be placed on his head. For, since the 
empire is established with a view to the future, it ought to carry 
with it all the legitimate consequences which preserve that future 
from uncertainty and shocks. 

In default of the direct line and of the adoptive line, the case 
of succession in the collateral line must be provided for. On that 
point we propose to you a clause, by which the people should 
confer on Louis Napoleon the right of regulating by an organic 
decree that order of succession in the Bonaparte family. By that 
means, our senatus-consultum will remain more perfectly in accord 
with the popular wish, which in its unlimited confidence has placed 
in Louis Napoleon's hands the destinies of the country; it will 
likewise be more in conformity with the political changes which 
France has entered into since 2d December. The greatest polit- 
ical genius of Italy, in the sixteenth century, was accustomed to 
say, in those rare and solemn moments in which the question is to 
found a new state, that the will of a single man was indispensable. 
That is what the nation comprehended so admirably when it 
remitted to Louis Napoleon the task of drawing up the constitu- 
tion which governs us. At present, that a capital modification is 
taking place in one of the very foundations of that constitution, it 
appears natural and logical to again confer on Louis Napoleon a 
portion of the constituent power, in order that, in the special 
point which concerns most intimately the interests of the dynasty 
of which the nation declares him the head, he may fix on such pro- 
visions as appear to him best appropriated to the public interest 
and the interest of the monarch. For his family, as well as for the 
country, Louis Napoleon is the man of an exceptional situation, 
and no fear must be entertained of adding to his power, in order 
that, with the assent of all, he may settle it by the authority of a 



AND SELF-GOVERNMENT. 



599 



single person. We, therefore, propose to you, after a conference 
with the organs of the government, which has led to unanimity 
of opinion, an article thus worded: "Art. 4. Louis Napoleon 
Bonaparte regulates, by an organic decree addressed to the senate 
and deposited in the archives, the order of succession to the throne 
in the Bonaparte family, in case he should not leave any direct or 
adopted heir." 

It is not necessary for us to say to you that in this system the 
formula to be submitted to the French people ought to contain an 
express mention of that delegation. It will be necessary, accord- 
ing to the constitution, that the French people be called on to de- 
clare whether it desires or not to invest Louis Napoleon with the 
power which we conceive ought to be conferred on him. 

After having thus spoken of the succession to the imperial 
crown, the senatus-consultum carries the attention to the condition 
of the family of the emperor. It divides it into two parts : 1, the 
imperial family, properly so called, composed of the persons who 
may by possibility be called to the throne, and of their descend- 
ants of both sexes ; and 2, of the other members of the Bonaparte 
family. 

The situation of the princes and princesses of the imperial 
family is to be regulated by senatus-consulta; and they cannot 
marry without the emperor's consent. Article 6 pronounces for any 
infraction of this regulation of public interest the penalty of 
losing all right to the succession, with the proviso, however, that 
in case of the dissolution of the marriage by the death of the wife, 
without issue, the right is at once recovered. 

As to the other members of the Bonaparte family, who compose 
the civil family, it is to the emperor, and not any longer to senatus- 
consulta, that it appertains to fix by statutes their titles and situ- 
ation. It is useless to insist on this distinction, as it is explained 
by the difference which exists between the civil family and that 
uniting in itself the double character of civil family and political 
family. 

We have also to request your special attention to the final para- 
graph of Article 6, which confers on the emperor full and entire 
authority over all the members of his family. These special 
powers are called for by the gravest considerations, and belong to 
the right generally instituted for reigning families. Princes are 
placed in so elevated a position by public right and national 



600 ON CIVIL LIBERTY 

interest, that they are, in many respects, out of the pale of the 
common law. The greater their privileges are, the more their 
duties are immense towards the country. Montesquieu has said : 
"It is not for the reigning family that the order of succession is 
established, but because it is for the interest of the state that there 
should be a reigning family." They belong, therefore, to the state 
by stricter ties than other citizens, and on account even of their 
very greatness must be retained in a sort of perpetual ward-dom, 
under the guardianship of the emperor, the defender of their dig- 
nity, the appreciator of their actions, and serving to them as father 
as much as guardian, in order to preserve to the nation this patri- 
mony in fact. 

If these reasons do not apply in all their extent to the members 
of the private family, there are others of not less importance, 
which are drawn from the conjoint responsibility imposed by a name 
which is the property of the nation, as much as of the persons 
who have the honor of bearing it. 

Besides, several of these persons have the privilege of being 
the only ones in the state that the emperor can place by adoption 
in the rank of the persons who may succeed to the crown. But 
there is no public privilege which ought not to be paid for by 
duties specially created to justify its necessity, and to co-operate 
in the object of its establishment. 

There is another point which it is sufficient for us to remind you 
of — the maintenance of the Salic law in the imperial dynasty. In 
France, the Salic law is, so to speak, incorporated with the mon- 
archy, and, although its origin goes back to the remotest periods, 
it has so completely penetrated into our way of thinking, and is so 
completely in accord with the rules of French policy, that it is in- 
separable from all transformations in the monarchical principle. 

Finally, gentlemen, the senatus-consultum provides for the case 
in which the throne should be vacant : "if ever the nation should 
be so unfortunate as to experience this affliction," (to use the lan- 
guage of the celebrated edict of July, 171 7,) "it would be for the 
nation itself to repair it." Article 5 formally recognizes this fun- 
damental, essential, and inalienable right. At the same time it 
provides for the means of preparing a choice worthy of the French 
people, by its prudence and maturity. In consequence, an or- 
ganic senatus-consultum, proposed to the senate by the ministers 
formed into a council of government, with the addition of the 



AND SELF-GOVERNMENT. 6oi 

president of the senate, the president of the legislative body, and 
the president of the council of state, shall be submitted to the free 
acceptance of the people, and will give to France a new emperor. 

Such, gentlemen, are the principal provisions of the senatus- 
consultum, now submitted to you for consideration, and which will 
prepare the august contract of the nation with its chief. Should 
you adopt it, you will order by a concluding article, in virtue of 
the constitution, that the people be consulted concerning the re- 
establishment of the imperial dignity in the person of Louis Napo- 
leon, with the succession of which we have just explained to you 
the combinations. But, gentlemen, we may affirm, whilst bending 
at present before a public will which only asks for an occasion to 
burst forth afresh, that the empire is accomplished. And that em- 
pire, the dawn of which has lighted up the path of Louis Napoleon 
in the departments of the south, rises over France, surrounded 
by the most auspicious auguries. Everywhere hope revives in 
men's minds ; everywhere capital, restrained by the uncertainty of 
the future, rushes with ardor into the channels of business ; and 
everywhere the national sap circulates, and vivifies to produce the 
most abundant fruits. 

This reign, gentlemen, will not be cradled in the midst of arms 
and in the camp of insurgent praetorian guards. It is the work of 
the national feeling, most spontaneously expressed ; it has been 
produced in our commercial towns, in our ports, in the most peace- 
ful centres of agriculture and manufactures, and in the midst of 
the joy of an affectionate people ; it will consequently be the 
Empire of Peace — that is to say, the revolution of '89, without its 
revolutionary ideas, religion without intolerance, equality without 
the follies of equality, love for the people without socialist charla- 
tanism, and national honor without the calamities of war. Ah ! if 
the great shade of the emperor should cast a glance at this France 
which he loved so much, it would thrill with joy at beholding the 
gloomy predictions of St. Helena, at one moment so near being 
realized, totally disproved. No; Europe will not be delivered up 
to disorder and anarchy ! No ; France will not lose the grandeur 
of her institutions, and it is the ideas of Napoleon directed towards 
peace by a generous-minded prince, which will be the safeguard of 
civilization. 



602 ON CIVIL LIBERTY 



SENATUS - CONSULTUM. 



In the month of November, 1852, the senate adopted the follow- 



ing senatus-consultum : 



SENATUS-CONSULTUM. 

Proposition to modify the Constitution, in co?ifor7?iity with Articles 

31 and 32. 

Art. 1. The imperial dignity is re-established. Louis Napoleon 
Bonaparte is emperor, under the name of Napoleon III. 

Art. 2. The imperial dignity is hereditary in the direct and 
legitimate issue of Louis Napoleon Bonaparte, from male to male 
in the order of primogeniture, and with perpetual exclusion of 
women and their descendants. 

Art. 3. Louis Napoleon Bonaparte, in default of a male child, 
may adopt the children and legitimate descendants in the male line 
of the brothers of Napoleon I. 

The forms of adoption shall be regulated by a senatus-consul- 
tum. 

If, after the adoption, male children of Louis Napoleon shall 
be born, his adoptive sons cannot succeed him, except after his 
own legitimate descendants. 

The successors of Louis Napoleon, and their descendants, cannot 
adopt. 

Art. 4. Louis Napoleon regulates, by an organic decree ad- 
dressed to the senate and deposited in its archives, the order of 
succession on the throne in the Bonaparte family, in case he should 
not leave any direct legitimate or adopted heir. 

Art. 5. In default of any legitimate or adoptive heir of Louis 
Napoleon Bonaparte, and of successors in collateral line who may 
derive their right from the organic decree above mentioned, a 
senatus-consultum, proposed to the senate by the ministers, formed 
into a council of government, with the addition of the actual 
presidents of the senate, the legislative corps, and of the council 
of state, and submitted for adoption to the people, appoints the 
emperor, and regulates in his family the hereditary order from 
male to male, to the perpetual exclusion of women and their 
descendants. 



AND SELF-GOVERNMENT. 603 

Until the election of the new emperor shall be consummated, 
the affairs of the state are governed by the actual ministers, who 
shall form themselves into a council of government and deliberate 
by a majority of votes. 

Art. 6. The members of the family of Louis Napoleon eventu- 
ally called to succeed him, and their descendants of both sexes, 
form a part of the imperial family. A senatus-consultum regu- 
lates their position. They cannot marry without the authorization 
of the emperor. Their marriage without this authorization de- 
prives of the right of inheritance as well him who contracts the 
marriage as his descendants. 

Nevertheless, if there are no children of such a marriage, and 
the wife dies, the prince having contracted such a marriage re- 
covers his right of inheritance. 

Louis Napoleon fixes the titles and the condition of the other 
members of his family. 

The emperor has plenary authority over all the members of his 
family. He regulates their duties and their obligations by statutes 
which have the force of laws. 

Art. 7. The constitution of the 15th of January, 1852, is main- 
tained in all those dispositions which are not contrary to the 
present senatus-consultum ; it cannot be modified except in the 
forms and by the means there prescribed. 

Art. 8. The following proposition shall be presented for the 
acceptation of the people in the forms determined by the decrees 
of the 2d and 4th of December, 1851 : 

"The people wills the re-establishment of the imperial dignity in 
the person of Louis Napoleon Bonaparte, with inheritance in direct 
legitimate or adoptive descendants, and gives him the right to 
regulate the order of succession to the throne in the Bonaparte 
family in the manner described in the senatus-consultum of the 7th 
of November, 1852." 

The senate adopted this senatus-consultum by eighty-six votes 
of eighty-seven senators. 

More than eight millions of people voted yes, according to the 
official publications. 

"All Frenchmen of the age of twenty-one, in possession of their 
civil and political rights," were called upon to vote by a decree of 
some length, of November 7th, 1852. 

The paper on elections, the first of this Appendix, contains the 



604 0N CIVIL LIBERTY AND SELF-GOVERNMENT. 

details of this and other votes, as well as the view of the author 
regarding them. 

In addition to the papers here given, it ought to be remembered 
that the senate can decree organic laws, and thus a senatus-con- 
sultum has been passed, according to which the legislative corps 
(already so denuded of power and influence) is deprived of the 
right to vote on the single items of the budget. It must adopt or 
reject the budgets of each ministry as a whole. This means, of 
course, that it must adopt the whole — for government would neces- 
sarily be brought to a stop if the entire budget of a ministry were 
rejected ; and the executive government would simply order again 
the soldiery to clear the legislative hall, assume the dictatorial 
power, and make the people rectify the coup. 






APPENDIX XVI. 



LETTER OF THE FRENCH MINISTER OF THE INTERIOR, 
MR. DE MORNY, ADDRESSED TO THE PREFECTS OF 
THE DEPARMENTS IN THE YEAR 1852. 

The minister of the interior 1 addressed the following circular to 
the prefects of the departments : 

"Monsieur le Prefet: You will shortly have to proceed to 
the elections of the legislative body. It is a grave operation, 
which will be either a corollary or a contradiction of the vote of 
the 20th December, according to the employment which you make 
of your legitimate influence. Bear well in mind that universal 
suffrage is a new and unknown element, easy for a glorious name 
to make the conquest of, unique in history, representing in the 
eyes of the populations authority and power, but very difficult to 
fix on secondary individualities ; consequently, it is not by follow- 
ing former errors that you will succeed. I desire to inform you 
of the views of the head of the state. You perceive that the 
constitution has aimed at avoiding all the theatrical and dramatic 
part of the assemblies, by interdicting the publication of the 
speeches delivered ; in that way the members of those assemblies, 
not being occupied with the effect which their words in the tribune 
are to produce, will think more of carrying on seriously the affairs 
of their country. The electoral law will pronounce on the in- 
compatibilities. The situation of public functionaries in a political 
assembly is always a very delicate matter, as im voting with the 
government they lower their proper character, and in voting 
against it they weaken the principle of authority. The exclusion 
of functionaries, and the suppression of all indemnity, must neces- 
sarily limit, in a country where fortunes are so divided as in ours, 
the number of men who will be willing and able to fulfil such 
duties. Nevertheless, as the government is firmly decided never 

605 



606 ON CIVIL LIBERTY 

to make use of corruption, direct or indirect, and to respect the 
conscience ( f every man, the best means of preserving to the 
legislative body the confidence of the populations is to call to it 
men perfectly independent by their situation and character. When 
a man has made his fortune by labor, manufactures, or agriculture, 
if he has been occupied in improving the position of his work- 
men, if he has rendered himself popular by a noble use of his 
property, he is preferable to what is conventionally called a polit- 
ical man, for he will bring to the preparation of the laws a practical 
mind, and will second the government in its work of pacification 
and re-edification. As soon as you shall have intimated to me, 
in the conditions indicated above, the candidates who shall appear 
to you to have the most chance of obtaining a majority of votes, 
the government will not hesitate to recommend them openly to the 
choice of the electors. Hitherto, it has been the custom in France 
to form electoral committees and meetings of delegates. That 
system was very useful when the vote took place an scrutin de liste. 
The scrutin de liste created such confusion, and such a necessity 
for coming to an understanding, that the action of a committee 
was indispensable ; but now these kind of meetings would be 
attended with no advantage, since the election will only bear on 
one name ; it would only have the inconvenience of creating 
premature bonds, and appearances of acquired rights which would 
only embarrass the people, and deprive them of all liberty. You 
will, therefore, dissuade the partisans of the government from 
organizing electoral committees. Formerly, when the suffrage was 
restricted, when the electoral influence was divided amcmg a few 
families, the abuse of this influence was most shameful. A few 
crosses, little merited, and a few places, could always secure the 
success of an election in a small college. It was very natural that 
this abuse should cause great dissatisfaction, and that the govern- 
ment should be called on to abstain from any ostensible inter- 
ference. Its action and its preferences were then occult, and for 
that very reason compromised its dignity and its authority. But 
by what favors could the government be now supposed capable of 
influencing the immense body of the electors? By places? The 
whole government of France has not establishments vast enough 
to contain the population of one canton. By money? Without 
speaking of the honorable susceptibilities of the electors, the whole 



AND SELF-GOVERNMENT. 607 

public treasury would not be sufficient for such a purpose. You 
will remember to what the result of the efforts of the government 
v/as reduced on the 10th December, 1848, in favor of the candidate 
to the presidency who was then in power. With universal suffrage 
there is but one powerful spring, which no human hand can restrain 
or turn from the current in which it is directed, and that is public 
opinion ; that imperceptible and indefinable sentiment which aban- 
dons or accompanies governments, without their being able to 
account for it, but which is rarely wrong in doing so ; nothing 
escapes it, nothing is indifferent to it ; it appreciates not only acts, 
but divines tendencies ; it forgets nothing, it pardons nothing, be- 
cause it has, and can have, but one moving power — the self-interest 
of each ; it is alive to all, from the great policy which emanates 
from the chief of the state to the most trivial proceedings of the 
local authorities, and the political opinion of a department depends 
more than is generally believed on the spirit and conduct of its 
administration. For a long time past the local administrations 
have been subordinate to parliamentary exigencies ; they occupied 
themselves more in pleasing some influential men in Paris than 
in satisfying the legitimate interests of the communes and the 
people. These days are happily, it may be said, at an end. Make 
all functionaries thoroughly understand that they must carefully 
occupy themselves with the interests of all, and that he who must 
be treated with the greatest zeal and kindness is the humblest and 
the weakest. The best of policies is that of kindness to persons, 
and facility for interests — and that functionaries shall not suppose 
themselves created for purposes of objection, embarrassment, and 
delay, when they are so for the sake of dispatch and regularity. 
If I attach so much importance to these details, it is because I 
have remarked that inferior agents often believe that they increase 
their importance by difficulties and embarrassments. They do 
not know what maledictions and unpopularity they bring down 
on the central government. This administrative spirit must be 
inflexibly modified ; that depends on you ; enter firmly on that 
path. Be assured that then, instead of seeing enemies in the 
government and local administration, the people will only con- 
sider them a support and help. And when afterwards you, in the 
name of this loyal and paternal government, recommend a candi- 
date to the choice of the electors, they will listen to your voice and 



608 ON CIVIL LIBERTY AND SELF-GOVERNMENT. 

follow your counsel. All the old accusations of oppositions will 
fall before this new and simple line of policy, and people in 
France will end by understanding that order, labor, and security 
can only be established in a durable manner in a country under a 
government listened to and respected. 

" Accept, &c. 

" A. DE MORNY." 






INDEX. 



Aberdeen, Lord, on the importance of 
the people moving before govern- 
ment, 126. 

Absent persons, penally tried, 71. 

Absolute democracy, no connection 
with liberty, 214. 

Absolute monarchs often allow bold 
discussions on liberty, 156. 

Absolutism, enlightened, not the best 
government, 26; always spurns fun- 
damental laws, 274; item, division 
of power, 275 ; resorts to transporta- 
tion, favors extraordinary courts, 
275 ; generally abhors publicity, 276 ; 
precedent, 277 ; copies foreign mea- 
sures, 296 ; popular, 373 ; all abso- 
lutism has an element of communism, 
381. 

Acclamation, decrees of, 190. 

Accumulation of single fortunes does not 
prove general wealth, 391. 

Accusation, trial by, 218 and sequ. 

Accusatorial trial, 218 and sequ. 

Adams, John, opinion that common law 
is a necessary element of the liberty 
of the United States, 211. 

Administrative judgments in France, 
107, 217. 

Advocate, ethics of, 240; independence 
of, 239 and sequ; is part of the ad- 
ministration of justice, 243. 

Age, present, its political character, 

17- 

Alexander the Great, 209, 2IO. 

American liberty founded on English, 
21 ; cannot be understood without 
English liberty, 22, 256 and sequ; 
characterized by representative re- 
publicanism and federalism, 258; 
what it consists in, 259 and sequ. 



Americans, of the Anglican race, 21 ; 

their task regarding civil liberty, ibid.; 

more inclined to abstract rights than 

the English, 261. 
Amyot's translation of Plutarch, great 

influence in France, 372, note. 
Anaxarchus, 208. 
Ancient liberty, 43 and sequ. 
Ancient philosophers, why they praise 

Sparta, 365. 
Anglican liberty, 40; its elements, 51 

and sequ ; how to find out in what 

it consists, 52. 
Anglican polity, Turgot's opinion on it, 

195- 

Anti-corn-law league, 125. 

Antiquity, its main differences from 
modern times, 360. 

Appropriations should be short, 145. 

Aristotle, greater than Alexander, 252. 

Arms, the right of bearing, 120. 

Army, must be under the control of the 
legislature, 1 14 and sequ. In Eng- 
land, and by the Constitution of the 
United States, ibid. President of 
the United States is chief com- 
mander, but cannot enlist soldiers 
without congress, 115. Declaration 
of Independence concerning British 
army, ibid. Standing armies, 116 
and sequ. In France, its extent 
and power, 1 18; French army votes, 
like the citizens, 119. Armies ought 
not to possess the right of petition- 
ing, 119; always favored by despots, 

273- 

Arnold, Dr. Thomas, definition of In- 
stitution, 303. 

Articles in addition to the Constitution 
of the United States, 526. 
39 609 



6io 



INDEX. 



Articles of Confederation and Perpetual 

Union, in full, 503 and sequ. 
Association, right of, and importance 

of, 124. 
Athenian prosecutor punished if he 

wholly failed in his prosecution, 77. 
Attainder and corruption of blood, in 

England, 102. 
Authentic interpretation, 208. 
Autonomy and Self-Government, 38 

and note. 

Bacon, quotations from, 23, 24. 

Bail, 67 and sequ. Advantages and 
disadvantages, 68. 

Ballot, universally established in the 
United States, 262. Has not the 
effect which the English expect, 263. 

Batis, 210. 

Bavarian code, against interpretation 
by courts, 206. 

Beccaria against pardoning, 434. 

Bechard, Lois Municipales des Repub- 
liques de la Suisse et des Etats-Unis, 
321, note. 

Bentham, Jeremy, Tactics of Legislative 
Assemblies, 192. 

Beranger, opinion on French justice, 75. 

Bernard, Frenchman, accessory before 
the fact, of Orsini, 57. 

Bicameral system, 193. 

Bill of Rights, in full, 492 and sequ. 

Billeting, debate in commons on, in 
1856, 116, note. 

Blanc, Louis, one of the representatives 
of the French school, 367, note; and 
present imperialists, equally for uni- 
versal suffrage, 157, note. 

Bodinus, his definition of liberty, 32. 
Copy of Bodinus used by Jefferson, 
32, note. 

Bonner's translation of De Tocque- 
ville's Ancien Regime, 254. 

Bossuet, for centralized power, 371. 

Bourgeoisie derided, 382. 

Brilliant men, or events, not the most 
influential, 252. 

Brougham, Lord, on discussing peti- 
tions, 122, note; on the organization 
of upper house, 198; ethics of the 
advocate, 241, note; on courts of 
arbitration, 281, note; on German 
empire, 356, note. 

Bunsen, Baron, on toleration, 54, note; 
on book of common prayer, 302. 

Bureaucracy, founded on writing, not 
speaking, 129; new word, 165; its 
character, ibid. 



Burke on legitimate parties, 148; on 

arbitrary power, 369. 
By-laws, 322 ; etymology, 323, note. 

Caesar, Julius, 376. 

Caesarean sovereignty, 375, note. 

Csesarism. See Imperatorial Sover- 
eignty. 

Campbell, Lord, opinion on petitions 
of British merchants, 58, note ; on 
unanimity of jury, 238, note. 

Capital, amount of, carried off by emi- 
grants, 94, note ; 95, note. 

Capital cities, influence of, 389. Mag- 
nificent capital cities pave a state of 
decline, 392. 

Carey, Mathew, on pardoning in the 
United States, 439. 

Carlisle, Earl, 121, note. 

Cassation, court of, 279. 

Cavaignac, General, his arrest, 109. 

Censorship of the press in England, 
92. 

Centralism leads to enfeebling man- 
worship, 394 ; to base flattery, 394, 
note; to brilliant acts, 395. 

Centralization, loved by the French, 
151 ; Turgot in favor of it, 195; 
passion of the French for it, 283. 

Centralized governments have no in- 
stitutions to break powerful shocks, 

349- 
Ceracchi, conspirator, executed by sena- 

tus-consultum, 317, note. 
Chambord, Count, his letter not allowed 

to be published, 386, note. 
Champ-de-Mars, the many different 

government exhibitions on the same, 

343- 

Chancellor, Lord, of England, being 
moderator of house of lords, 186; 
member of the cabinet, 186, note. 

Chardin, on pardoning in Persia, 433. 

Charter, French, of Louis XVIII. , in 
full, 545 and sequ; of the year 1830, 
ibid. 

Charter, the great, of England, 458 and 
sequ, and 470 and sequ. 

Chartists, petition in 1848, 121, note. 

Chatham, Lord, on trial by jury, 233; 
on passage in Magna Charta, con- 
cerning administration of justice, 
276 ; on arbitrary power, 369. 

Chevenix, on national character, 182, 
note. 

Cicero, definition of liberty, 28. 

Cis-Caucasian race, 22, note. 

Cities, in the Netherlands were sover- 



INDEX. 



611 



eign, 170, note, 337 ; not sufficient 
as patria for moderns, 170. 

City, confounded by the ancients with 
the state, 45 and sequ. 

City-states and national states, 360 and 
sequ. 

Civilization, law of spreading, 294. 

Civil Law, influence of, on common law, 
212. 

Civil Liberty. See Libei'ty. 

Civil List. See Taxation. 

Code Napoleon and equality, essence 
of civilization, 19. 

Codification does not prevent interpreta- 
tion, 205. Lord Cranworth on, 207, 
note. 

Coetlogon, French case of opening 
letters, 92. 

Coke, on the justice of the peace, 322, 
and note. 

Collard, Royer, on absolutism of the 
majority, 283. 

Colonization Society, 125. 

Color, effect of distinction of races on 
American sympathy and politics, 260. 

Commissions, contradistinguished from 
regular courts, 106. 

Common law, necessary for the inde- 
pendence of the law, 204 and sequ. 
Constitutes the greater portion of 
British constitution, 210. Compared 
with civil law, 21 1; article Common 
Law in Encyclopaedia Americana, 
written by Judge Story, 213, note; 
American writers who take French 
views of liberty and of law against 
it, 214. 

Communion, right of, 87 and sequ. 
Liberty of, always abolished by abso- 
lutists, 272. 

Communism, the basis of the Utopias, 
44, note. 

Compensation bill, intended by Ro- 
milly for accused persons not found 
guilty, 77. 

Compurgators, 454. 

Conclamation, election by, of medieval 
character, 401. 

Confederation, Articles of, and Per- 
petual Union, in full, 503 and sequ. 

Confirmatio Chartarum, 470 and sequ. 

Confirmation of liberties, 470 and sequ. 

Confiscation, incompatible with civil 
liberty, 101. 

Conflicts between courts and adminis- 
trations, were to be decided by a 
separate tribunal, according to French 
constitution of 1848, 566. 



Conscience, liberty of, 97 and sequ. 
American constitutions regarding it, 
ibid. Necessity, at present, 99. Why 
its full acknowledgment in England 
so late, 100. 

Conscription in France, 1 19, note. 

Constitutionality, declared by supreme 
court, 162 and sequ. 

Constitutions, produced in our age, 17, 
18; written and unwritten, enacted 
and cumulative, 162, note; of Eng- 
land, consists chiefly of common 
law, 210; what it consists of, ibid.; 
of the United States, called atheistic, 
259, note; of the United States, 
works on it, and on their govern- 
ment, 265, note ; of the United 
States, in full, 514 and sequ ; French, 
of 1793, in full, 531 and sequ; of 
the French republic of 1848, 555 
and sequ; of France, of 185 1, 576 
and sequ. 

Coode, codifying English poor-law, 
207, note. 

Cooper, Dr. Thomas, opinion of Ham- 
ilton's Parliamentary Logic, 192, 
note. 

Corruption of blood, not admitted in the 
United States, 80; in England, 102. 

Council of State, in France, 200. 

Council of Trent, adopted the half-hour 
rule, 133, note. 

Counsel of the prisoner, 240. 

Country, necessary for moderns, instead 
of ancient cities, 169, and note. 

Cours prevotales, abolished by charter of 
Louis XVIII. See Natural Courts. 

Courvoisier, and Philips his counsel, 
245, note. 

Cranworth, Lord, on codification, 207, 
note ; on trial by jury, 236, note. 

Crimen exceptum, high treason, 82. 

Cromwell, congratulations on dissolv- 
ing parliament, 418. 

Crowds, acclaiming, deceive, 396. 

Crown, or principate, on the Continent, 

49- 

Crusades, in connection with the Vox 
populi vox Dei, 400. 

Cumulative constitutions. See Enacted 
Constitutions. 

Cumulative voting, 177, note. 

Curtis, G. J., History of the Constitu- 
tion of the United States, 265, note. 

Cushing, L. S., Rules of Proceeding 
and Debate, etc., 191, note. 

Cyclopean walls, 353, note. See Forch- 
hammer. 



6l2 



INDEX. 



Dahomey, King of, his letter to Queen 
Victoria, 25, note. 

Daly, Judge, Historical Sketch of the 
Judicial Tribunals of New York, 
239, note. 

Debating, not known in Roman senate, 
189, note ; cannot take place in mass- 
meetings, ibid. 

Deciduous institutions, 319. 

Declaration of Independence of the 
United States, in full, 498 and sequ. 

Decree of March 22, 1852, to regulate 
" the relations of the legislative corps 
with the president of the republic 
and the council of state," 582. 

Defensors, of prisoners, 240. 

Definitions of Liberty, 26 and sequ. 
Difficulty to defend it, ibid. 

Delegated powers, — those which are 
not positively delegated are reserved 
for the people by the Constitution of 
the United States, 161. 

Demagogues, 338. 

Democracy, Aristotle's opinion on ex- 
treme, 156; absolute, or in the agora, 
hostile to liberty, 167. 

Democratic absolutism, 156. 

Democratic might, divine right and, 
366. 

Deputative government of the middle 
ages, 164. 

Despots, brilliant, their danger, 26. 

De Tocqueville and De Beaumont, on 
the abuse of pardoning in the United 
States, 438. 

Divine right and democratic might, 
366. 

Division of government into three 
branches, 150. 

Division of power, contrary to abso- 
lutism, 275. 

Dixon, C. G., Sketch of Maiwara, etc., 
169, note. 

Doge of Venice, his election, 178. 

Dragonnades, under Louis XIV. See 
Army, Soldiers, etc. 

Dred Scott case, 262, note. 

Duke's laws, 238. 

Dumont, concerning absence of par- 
liamentary practice in French Revo- 
lution, 190. 

Ebrington, Lord, 283, note. 

Education alone, no basis for liberty, 
299. 

Egress and regress secured by Magna 
Charta. See Loconiotion, Right of, 
and the Charter itself, in Appendix. 



Election alone not liberty, 32; of the 
chief ruler, does not establish a re- 
public, or liberty, 150, note; direct 
and indirect, 174; in electors to elect 
President of United States, 175 and 
sequ; circuitous elections in the mid- 
dle ages, 178 ; management of elec- 
tions must not be in the hands of the 
executive, 179; of chief does not 
establish liberty, 286; not allowing 
to choose, 386 ; paper on it, Appen- 
dix, 413 and sequ. 

Elections, ex post facto. See Ex post 
facto Elections. Conditions to make 
them valid, 414. Question must have 
been freely discussed, ibid. Absence 
of the army, 414 and sequ ; must be 
carried on by election institutions, 
415; returns must be protected 
against falsification, ibid. ; the per- 
son on whom the voting takes place 
must not have the supreme power, or 
it must be possible to make him obey 
the issue, ibid. ; there must be two 
things to vote upon, ibid. ; the power 
claiming the election must not have 
committed a political crime, ibid.; 
must be on things subject to public 
opinion, 416. Election of patron 
saint, 416, note. Congratulations 
crowding on Cromwell after having 
dissolved parliament, 418 ; they did 
not express English public opinion, 
ibid. Election statistics, ibid. Quali- 
fied voters abstain in proportion to 
the general privilege of voting, 419; 
twenty-five per centum a small num- 
ber of abstainers, ibid. If qualified 
voters more than two or three thou- 
sand, one-half voting shows com- 
mon interest, 420 ; voting on men 
draws more votes than voting on 
measures, ibid. French have never 
voted no on proposed constitutions, 
consuls or emperors, ibid. Election 
of Napoleon I., 421. How many 
Athenians usually voted, ibid. Os- 
tracism, 421, 422. Instances of 
number of abstainers, 423 and sequ. 
Official statement of election after 
French coup d'etat, 427 ; cannot be 
correct, ibid. 

Electors of President of the United 
States, 175. 

Eleutheria, 29. 

Emigration, 93 and sequ. Amount of 
capital carried off by emigrants, 94. 

Enacted or written constitutions, 265. 



INDEX. 



613 



England, her service in the cause of 
freedom, 19 and sequ. Early sepa- 
ration of justice from administra- 
tion, 20, note. Her liberty the 
foundation of ours, 20, 21. Many 
fortunate circumstances in her his- 
tory, 48 and note ; becomes the model 
of liberty for the Continent, 49. 

English a peculiarly jural nation, 451. 

Enlightened absolutism not the best 
government, 26. 

Enthusiasm no basis of liberty, 299. 

Epistolary communism, 88 and sequ. 

Equality, and Code Napoleon, the es- 
sence of political civilization, 19. 
Confounded with liberty, 29. More 
equality in Asia than in the United 
States, 30 ; the French seek for lib- 
erty in it, 281, 282 and sequ; diffi- 
cult to see what the French mean by 
it, 285. 

Erskine, Lord, opinion of, on trial by 
jury, 233, note. 

Ethics of the Advocate, 240 and sequ. 

Everett, Edward, opinion of, on impor- 
tance of parliamentary law and pro- 
cedure, 189, note; on the French in 
Canada, and inability of the French 
to establish governments in foreign 
parts, 330. 

Every man's house is his castle, 60 and 
sequ. How it developed itself, 61. 
Possessing still full vitality, ibid. 

Executive must have a warrant for 
what it does, 161. 

Ex post facto elections. See Impera- 
torial Sovereignty, and 413. 

Ex post facto laws, 106. 

Fabrik-Gerichte. See Mamifactory 

Courts, 231, note. 
Fashion, though unanimous, not vox 

populi vox Dei, 402. 
Federalism characterizes American lib- 
erty, 258. French hatred of it, 288, 

note. 
Ferrers, George, member of parliament, 

released from arrest in 1543, 182. 
Fete of the Eagles, 274. 
Feudal system, 47. 
Feuerbach, Manual of the Common 

German Penal Law, 239, note. 
Fijians take more powder to kill a 

large man, 455. 
Forchhammer on the Cyclopean walls, 

353, note. 
Foster, Discourse of Homicide, no, 

note. 



Fox, Charles, Bill on Libel, 235, note. 
Framers of American Constitution, their 

character, 261. 
Francis, Chronicles and Characters of 

the Stock Exchange, 146. 
Franklin, Dr., in favor of one house 

of legislature, 195. 
Frederic II., concerning petitions, 123; 

why should many submit to one? 

370. 

Free press, first in Netherlands, 87. 
Constitution of the United States dis- 
tinctly establishes freedom of the 
press, 88. Prohibited by English 
republican government, 92. 

Freedom, etymology and distinction 
from liberty, 37 and 38, note. 

Freedom of action desired by all men, 
25 ; even by despots, ibid. 

Freejnen, subjects, and slaves, 26, 27. 

French Constitution of 1793, 531; of 
1851,576. 

French Charters of Louis XVIII. and 
of the year 1 830, 545 and sequ. 

French idea of liberty and the height 
of civilization, 157, note. 

French interference, 251. 

French, mistake source of power for 
foundation of freedom, 197 and sequ. 

French Republic of 1848, Constitution 

of, 555- 

French republicanism strives chiefly for 
equality, 19. 

French senate, report of, on petitions 
to change the republic into an em- 
pire, 588. 

Fronto, Letter to Marcus Aurelius, 374, 
note. 

Gallican liberty, 279 and sequ. 
Court of cassation, ibid. French 
senate, 281. Sought in equality, 
ibid. French seek for self-govern- 
ment in absolute rule of the majority, 
ibid. Unicameral system, 288. 

Gaza, 210. 

Gendarmerie, no. 

General opinion, mere, worth little as 
political truth, 417. 

General warrants, 62 and sequ. Lord 
Mansfield's opinion, ibid. Green- 
leaf, 63. 

Girardin, Emil, confounded election 
and liberty, 32; French writer in 
favor of an undivided public power, 
150; calls universal suffrage the re- 
public, 355. 

Girouettes, Dictionnaire des, 409, note. 



6i4 



INDEX. 



Gottfried, poisoner, 240, note. 

Grayson, moves free river navigation 
in congress, 268. 

Great cities. See Vaughn. 

Grebo tribe, " patriarchal democracy," 
287, note. 

Greeks, their definition of liberty, 29. 

Green) eaf on warrants, 63. Collection 
of cases overruled, 209, note. 

Grey, Sir George, expatriation law, 
437, note. 

Guards, declared unconstitutional, 114, 
note. 

Guizot, on absolute monarchy, 155 ; 
History of Representative Govern- 
ments, 318, note; History of Civili- 
zation, 287. 



Habeas Corpus, 64; act, Charles II., 
ibid.; Constitution of the United States 
prohibits its suspension, 65 ; allows 
it under certain circumstances, ibid. ; 
habeas corpus act in full, 483 and 
sequ. 

Hale, Chief Justice, on misstating au- 
thorities, 244. 

Hallam, on unanimity of juries, 237. 

Haller, Restoration of Political Sci 
ences, 349, note. 

Hamilton, W. Gerard, Parliamentary 
Logic, 192, note. 

Hamilton, Sir William, on origin of 
vox populi vox Dei, 400, note. 

Hammersly, Thomas, banker through 
whom George IV. and his brothers 
borrowed Dutch money, 105, note. 

Hampden, 144. Memorials of John 
Hampden, by Lord Nugent, ibid. 

Harris, Oceana, considered the mere 
vetoing power in the people the 
chief protection of liberty, 359. 

Helots and Spartans, 27. 

Henry VIII., even he paid outward 
respect to law, 20, note. 

Hesiod, quoted by Sir Wm. Hamilton 
as to origin of vox populi vox Dei, 
400, note. 

High treason, 79 and sequ. Well- 
guarded trial for high treason neces- 
sary for liberty, ibid, and sequ. Com- 
mon protection of criminals with- 
drawn from it, 80; Constitution of 
the United States on it, ibid. ; course 
of its development, 81. Law of high 
treason a gauge of liberty, 83 ; neces- 
sary safeguards of a fair trial for high 
treason, 83 and sequ. The senate 



does not try for it, 85. Neapolitan 

trials for treason, ibid. 
Hildreth, Theory of Politics, etc., 214, 

note. 
Holt, Lord, doctrine of bailments, 212. 
Hortensius, Historical View of the Of- 
fice and Duties of an Advocate, 241, 

note. 
House, one, of legislature, 194; tried 

in the United States, ibid. 
Houses, two, of legislature, 194. 
Howard obtains support of prisoners 

by government, in 1 774, 219. 
Hue, missionary, 123. 
Hungary, disjunctive constitution of, 

338. 

Impeachment, American, 85 ; is a po- 
litical institution, not a penal, ibid. 
See High Treason. 

Imperatorial sovereignty, 374 and sequ. 
Roman emperors claimed their power 
by transfer of popular sovereignty, 
ibid. Return of the French to the 
idea, 376. Early Asiatics have the 
same idea, 378. Peuple-roi, 381. 
Emperor, centre of democracy, 384. 
Election of emperors by universal 
suffrage futile, 385. The Caesar al- 
ways exists before imperatorial gov- 
ernment, 386. Recommends itself 
by substituting democratic equality 
for oligarchy, 387. 

Impressment of seamen, 66. 

Indemnity, acts of, in England, 112. 
Not known in the United States, 112, 
note. ' 

Independence, Declaration of, of the 
United States, in full, 498 and sequ. 

Independence of the advocate. See 
Advocate. 

Independence of the judiciary, what it 
consists in, 203 and sequ. See In- 
dependence of the Lazv. 

Independence of the law, 204. What 
it consists in, 205. Common law 
necessary for it, 205 and sequ. 

Individual character and its elements, 
48. 

Individual property, its fullest protec- 
tion an element of liberty, 101. 

Individual sovereignty, 286; declared 
by Lamartine, 299. 

Individualism, 101, note. 

Initiative, in legislation, 183. 

Inorganic power of the people not 
liberty, 367. 

Inquisitorial trial, 218 and sequ; paper 



INDEX. 



615 



on it, 451. Influence of the inquir- 
ing judge, ibid, and sequ; prisoner 
urged to confess, 452; no cross-ex- 
amination, ibid. ; no regular indict- 
ment, ibid. ; character of court and 
police mingle, ibid. ; cautious de- 
fence, ibid. ; admits of half proofs, 
453 ; illogical character of half proofs, 
454. Compurgators in Ripuarian 
laws, ibid. ; in Koran, ibid. Legal 
truths, 456. Torture, existed very 
late, 457, note. 

Institute and institution, 305, note. 

Institution, 297 and sequ. Definition 
of, 300 and sequ. Grown and en- 
acted institutions, 303 ; definition by 
Dr. Arnold, 304 ; insures perpetuity, 
306 ; must be independent, ibid. 
Greeks had no word for it, 308. Ro- 
mans reared many institutions, ibid. 
Old usages called institutions, 310. 
Necessaiy attributes of an institution, 
ibid.; the opposite to subjectiveness, 
311; dangers, ibid. ; tendency, 312. 
Institutional nations, 313 ; govern- 
ments, ibid. Gives strength to error, 
314; effete and hollow ones, 317; 
deciduous institutions, 319. Institu- 
tional self-government, ibid. ; Angli- 
can view of it, 320; its requirements, 
321 ; its uses and efficiency with ref- 
erence to liberty, 324. Obedience 
with reference to institution, 326; its 
tenacity, 329 and sequ ; its formative 
power, 330 ; its assimilative and 
transmissible character, 331 and sequ. 
Why did the Netherlands not plant 
colonies which have become inde- 
pendencies ? 332, note. Its assimila- 
tive character forcibly shown in the 
United States, 332. Stability, 333. 
Its dangers, 337. On conflicts, 340. 
Institutions bad from the beginning, 
342. Institutions protect against court 
profligacy, 350; prevent national en- 
ergy from being directed exclusively 
to external increase, 351. Insecurity 
of uninstitutional governments, 363 
and sequ. Institutions survived Eng- 
land's revolutionary absolutism, 363. 
Democratic inorganic masses hostile 
to, and in favor of monarchy, 368. 

Institutional liberty, 300 and sequ. 

Institutors, the greatest rulers are, 316. 

Institutum, does not exactly correspond 
to our word institution, 307, note. 

Interference, French, by government, 
251. 



Interpretation, unavoidable, 205. Papal 
power against it, 206, note. Civil law 
against it, 206. Locke against it, 
207. Bavarian code, 208. 

James II. subverting constitution ap- 
parently in favor of liberty, 387. 

Jefferson, Manual of Parliamentary Prac- 
tice, 192, note. 

Jeffreys, Lord, even he for allowing 
counsel to prisoners, 240. 

Johnson, Dr. Samuel, Considerations on 
the Corn-Laws, 192, note. 

Judge-made law, 210. 

Judiciary, independence of the. See 
Independence of the Judiciary. 

Jugements administratifs.in France, 217. 

Julius Caesar, 376. 

Junkerthum, appellation of a German 
party, 118. 

Justice of the peace, English, 322 ; 
French, 280. 

Keeper of the Seals. See Chancellor, 
Lord, of England. 

King, Rufus, in connection with Ameri- 
can free river navigation, 267. 

King's Bench, its power, 359. 

King's Notes on the Voyage of the Mor- 
rison, III, note. 

Kingless polity not necessarily a re- 
public, 355. 

Kingly commonwealth, name given by 
Dr. Arnold to English polity, 354. 

Lamartine, in favor of one house of 
legislature, 196; speaks of division 
of sovereignty into two parts, 196, 
note; changed his opinion in 1850, 
197, note; his circular in 1848, 299; 
on patience in politics, 352. 

Latinism and Teutonism, 293. 

Law, peculiar meaning of the term in 
England, 20, and note ; above crown, 
20, 203 ; supremacy of, 106 and 
sequ, 273 ; independence of the, 204 
and sequ. 

Layard, Nineveh, 339, note. 

Legare, Hugh, on Civil Law, 212, note. 

Legislative corps, French, decree direct- 
ing its intercourse with the execu- 
tive, etc., 583. 

Lemoisne, Wellington from a French 
point of view, 325, note. 

Lesbian Canon used by Aristotle to 
explain what psephisma ought to be, 
353, note. 

Letters, sacredness of, not acknowl- 



6i6 



INDEX. 



edged in France, 89 and sequ. Case 
of Mr. Coetlogon, 92, note. Opened 
by French police and judgment given 
by French courts on the act, 1 61, note. 

Lettre de cachet, 65. 

Liberians traditionally institutional, 330. 

Libertas, meaning abolition of royalty, 
28 ; of the Romans, 42. 

Liberties, confirmation of, 470 and sequ. 

Liberty, may exist without republican- 
ism, 256 ; civil liberty, proved by con- 
traries, 270 and sequ; admired by 
many in the abstract, disrelished in 
reality, 285; election of the chief 
does not establish it, 286 ; can it be 
enjoyed by the Anglican race alone ? 
291 ; how people are prepared for it, 
292 ; institutional, 300 and sequ ; sup- 
ported and promoted by institutions, 
324; saying of Napoleon III., that 
liberty never aided in founding a 
durable edifice, 335; cannot develop 
itself out of despotism, ibid. Liberty 
is not a mere negation of power, 359; 
wealth made compatible with liberty, 
361 ; inorganic power of the people 
not liberty, 367. 

Lieber, Popular Essay on Subjects of 
Penal Law, etc., 72; letter to W. C. 
Preston on international copyright, 
92, note ; Essays on Labor and Prop- 
erty, 101, note, 383; Principles of 
Interpretation and Construction in 
Law and Politics, 205, note ; Ency- 
clopaedia Americana, 213, 570; Char- 
acter of the Gentleman, 245 ; on 
Independence of Justice and Free- 
dom of Law, (in German,) 204, note ; 
Legal Hermeneutics, etc., 206. 

Liverpool, Lord, considers cabinet min- 
isters responsible to parliament and 
the public, 160, note. 

Locke, for the division of power, 1 50; 
against interpretation of law by courts, 
207 and sequ; against unanimity of 
juries, 238. 

Locomotion, right of, 87 and sequ, 93 
and sequ. 

London, police of, 297 \ though larger 
than Paris, does notlead England, 392. 

Longevity of modern states, 362. 

Lynch law, 82. 

Macaulay, Lord, opinion on want of 
written guarantees when Charles II. 
was restored, 329. 

Machiavelli, on new governments, 357, 
note. 



Madiai family, 98. 

Magna Charta of King John, in full, 
458 and sequ; of Henry III., etc., 
in full, 470 and sequ. 

Majority, rule of, mistaken for self-gov- 
ernment, 282. 

Malta, Knights of, election of the mas- 
ter, 178. 

Mandarinism, 165, note. 

Mansfield, Lord, on wai-rants, 62 ; letter 
to a Scottish judge, on alterations to 
be made by courts, 215, note ; on the 
case of Rev. Dr. Dodd, 437, note; 
calls Socrates the greatest of lawyers, 
242. 

Marcus Aurelius, letter from Fronto to, 
374, note. 

Market democracy, irreconcilable with 
liberty, 167. 

Mars, Mademoiselle, her saying, 405. 

Marshall, Chief Justice, on treason, 81. 

Martial law, executive must not have 
the sole power of declaring it, 108. 
In England, by act of parliament, 
ibid. Under what circumstances the 
Constitution of the United States 
permits suspension of habeas cor- 
pus, 65. 

Masaniello, sepulchral inscription in 
honor of, 377, note. 

Merchants, London, their spirit towards 
Napoleon III., 58, note. 

Michel, advocate, 381. 

Michigan, abolishes, in 1 859, grand 
jury, 256. 

Migration of nations, modern, peaceful, 
21. 

Milton against censorship, 92. 

Ministers, responsible. See Responsible 
ministers, 159 and sequ; ministers of 
the crown had a seat in both houses, 
even if not members, under the two 
charters, 183. 

Minority, protected, important to lib- 
erty, 31; its protection a necessary 
element of liberty, 148; to be repre- 
sented by mode of voting, 176; to 
be represented by a mode of election, 
177, and note. 

Miot, Count, memoirs, account of Na- 
poleon's attempt to abolish jury, 253, 
note. 

Miot, Count, with reference to senatus- 
consultum, 317, note. 

Mirmont, de la Ville de, observations 
on pardoning for good conduct, 448, 
note. 

Mittelberger, Gottlieb, seven weeks 



INDEX. 



617 



chiefly on the Rhine, from Swabia 

to Rotterdam, 267, note. 
Mittermaier, opinion of, on importance 

of penal trial, 69 ; on independence 

of advocates, 240, note. 
Mobs, 407 and sequ. 
Mohl, Robert von, History and Litera- 
ture of the Political Sciences, 350, 

note. 
Montaign, executed by commissioners, 

106, note. 
Montalembert, Count, his trial in 1858, 

84 ; prosecution against him, why, 

Montesquieu, his definition of liberty, 
33»; English liberty his model, 49 ; on 
penal trial, 69 ; on division of power, 
150; on despotic power, 152. 

Moral reduplication, case of, 311. 

Mormonism no republic, 288. 

Mormons, 99 and sequ. 

Morny, A. de, letter of, to the pre- 
fects, concerning the character of 
French imperial government, 605. 

Morpeth, Lord, Earl Carlisle, 1 2 1, note. 

Muffling, Baron, Campaign of 1813 
and 1 8 14, edited by Col. P. Yorke, 
328. 

Mutiny bill, in England, keeps army 
under control of parliament, 1 14. 

Mutual toleration necessarily connected 
with liberty, 54. 

Napoleon I., on the French love of 
equality, 283 ; his device, " every- 
thing for the people, nothing by the 
people," 250; attempts to abolish 
jury, 253, note. 

Napoleon III., his testimony in favor 
of English personal liberty, 65 ; when 
in exile, wrote against passports, 96, 
note ; prohibits the sale of printing 
presses and types, 272 ; declares the 
history of nations the history of their 
armies, 274; congratulates France 
that it enjoys indigenous institutions, 
293 ; saying regarding liberty being 
incapable of founding durable edi- 
fices, 335 ; " in crowning me, France 
crowns herself," 355, note; speech 
on opening the Louvre, on the repre- 
sentative character of great public 
buildings, 390, note; declared the 
savior of civilization, 396. 

National and city states, 360 and sequ. 

National guards, 290. 

National independence an element of 
liberty, 56 and sequ. 



National representation necessary for 

liberty, 168. 
National states, 168 and note. 
Nationalization, 47. 
Natural courts, 107. 
Navy not dangerous to liberty, 1 14. 
Netherlands ruined by disjunction, 169, 

note. 
Netherlands, why did they not plant 

independent empires? 332, note. 
Niebuhr, B. G., Administration of 

Great Britain, by Baixm von Vincke, 

edited by, 321, note. 
Nobility, its absence in America, when 

the revolution broke out, prevented 

civil war, 257; none in England, in 

point of law, 348, note. 
Nomos and psephisma, 353, note. 
Nugent, Lord, opinion of, on the right 

of granting supplies, 144. 

Obedience, in connection with institu- 
tion, 327. 

Oceana, Harris's, 338, note. 

Occidental, contradistinguished from 
Oriental, 22. 

Odo, yielding his consent to be Arch- 
bishop of Canterbury, in connection 
with vox populi vox Dei, 400, note. 

Omnipotence of parliament, 368, note. 

One-hour rule, 133, note. Council of 
Trent adopted half-hour rule, ibid. 

Opposition, necessary element of lib- 
erty, 148 and sequ ; its development 
in England, 149. 

Oral discussions, 128; necessary to 
liberty, 129. 

Ordinance of 13th July, 1787, declaring 
American rivers free, 268. 

Oregon, meeting of settlers, when con- 
gress had failed to provide for them, 
194. 

Ostracism, how many votes polled, 421. 

Otis, James, first proposes to hold pub- 
lic deliberations of legislature, 131, 
note. 

Ouvrier, or workman, in 1848, 382. 

Paley, definition of liberty, 34 ; idea 
of penal law, 72, note. 

Palmerston, Lord, declaration in 1853 
that England will protect political 
exiles, 56; his complacency to Na- 
poleon punished by the commons in 
I ^59> 57> on pardoning, 449. 

Papal interference not suffered in Eng- 
land at an early period, 59. 

Pardon, a real veto power, 202. 



6i8 



INDEX. 



Pardoning, abuse of, paper on it, 431 
and sequ. Resembles the ancient 
veto, ibid. Origin of pardoning 
power, 432. Asiatic despots divest 
themselves of it, ibid. ■ Chardin 
speaks of it in Persia, 433. Authors 
against pardoning, especially Bec- 
caria, 434. It cannot be dispensed 
with, ibid. Supremacy of the law 
invaded by unjust and licentious par- 
doning, 435. It unsettles reliance on 
law, 436 ; destroys certainty of pun- 
ishment, ibid.; Shakspea.re against 
it, ibid. ; interferes with reform of 
criminals, ibid. ; imports criminals 
from abroad, ibid. ; induces people 
to petition for it who know nothing 
about its character, ibid. ; sends crimi- 
nals abroad, 437 ; places arbitrary 
power in the hands of an individual, 
ibid. Lord Mansfield, on Rev. Dr. 
Dodd, 437, note. De Beaumont and 
De Tocqueville, on pardoning in the 
United States, 438. Mathew Carey 
on it, 439. Taking money for par- 
doning, ibid., and note. Pardoning 
in Massachusetts, 440. Averages in 
penal matters, 442 ; their insuffi- 
ciency, 443, note. How to abolish 
the abuse of pardoning, 444. Re- 
striction in the French constitution 
of 1848, 442, note. Attention not yet 
sufficiently directed to it, 445, note. 
Legislature no proper body for par- 
doning, 446. Requisites of a proper 
board of pardoning, 447. Restitu- 
tion different from pardon, 448. Lord 
Palmerston on pardoning, 449. 

Paris, its influence on account of cen- 
tralization, 389; dictates in every- 
thing, 393. 

Parliament, British, distribution of seats 
in, 172, note. 

Parliamentarism, term coined by the 
French, 289. 

Parliamentary law, 185 and sequ ; is 
part of common law, 187. Ancients 
had it not, 189. 

Parliamentary liberty derided, 18, 317. 

Parliamentary procedure, 188; Judge 
Story on its importance, 193. 

Parties and party government, 148. 
Their dangers, 149. 

Passports, dislike of them by our race, 
96. 

Patience in politics, 352. 

Patriotism not national vanity, 294. 

Patron saint, election of, 416, note. 



Payne, Rev. Mr., on the Grebo tribe, 
288, note. 

Peerage is not nobility, 348, note. 

Penal law of England formerly very 
cruel, but not the trial, 219. 

Penal laws, according to Montesquieu, 
determine liberty, 34. 

Penal trial, well-secured, necessary for 
liberty, 68. Montesquieu on it, 69. 
Ancient, 70; French, 71. Not a fa- 
vorite topic of lawyers, ibid. ; requi- 
sites of a sound penal trial, 71 and 
sequ. Dangers of putting questions 
to prisoners, 74. Questioning was 
formerly allowed in England, ibid. ; 
reasons against it, 75. No man to be 
tried twice for the same offence, 76. 
As important as penal law itself, 219. 

People, the different meanings of the 
term in different countries, 346. In 
England and America, an honored 
word, 347. Confusion of the people 
and some people, 347, note. The 
people "never violate the constitu- 
tion," 381. What does the term 
mean in " vox populi vox Dei" ? 398, 

405- 

Personal liberty, its guarantees, 59. 

Persons and papers, power of sending 
for, 188. 

Petition, right of, 1 21 and sequ. Con- 
sidered lightly by an American states- 
man, 121. In Russia, 122 ; in China, 
123. In Prussia, under Frederic II., 
ibid. No demonstrations of physical 
force ought to accompany it, 123. 

Petition of Right, in full, 478 and sequ. 

Petre, Hon. Mrs., and Silby estate 
affair, 95, note. 

Peuple tout-puissant, 299, 368. 

Philips, in the Courvoisier case, 245, 
note. 

Pickering, Timothy, letter to Rufus 
King, urging free river navigation, 
268. 

Pigott, Sir Arthur, repudiating for the 
Prince of Wales, 105, note. 

Pitt, his last words on England's self- 
reliance, anecdote related by Wel- 
lington, 251. 

Pius IX., Pope, uses " vox populi vox 
Dei," 406. 

Plato's Republic, 44. 

Plumper, in elections, 177. 

Plutarch, influence of, in France, 372. 

Police governments, 91. 

Polignac, Duke of, charge against him, 
179, 385- 



INDEX. 



619 



Political offence, 79. 

Pope Pius IV., against interpretation, 
206, note. 

Popular absolutism, 373. 

Popular unrestrained power, opposite 
to self-government, 388. 

Power, its " impotency," Napoleon's 
saying, 253 ; too much growth of, 
can only be prevented by institu- 
tions, 357; necessary for government, 
358 ; mere negation of, no security 
for liberty, 366; its origin has no 
connection with liberty, 371 ; neces- 
sity of giving some fair account of its 
basis, 379. 

Practice, parliamentary, 189. 

Practice, so-called, in German courts, 
215. 

Precedent, element of all development, 
208. Necessary to liberty, 209. Lib- 
erty stands in need of, 276. 

Preferential voting, 177, note. 

Preston, Wm. C, letter to, on inter- 
national copyright, 92, note. 

Price, Dr., his definition of liberty, 28; 
Turgot's letter to him, 195. 

Principate, or crown, 49. 

Private property acknowledged by the 
French constitution, 103. 

Procedure, parliamentary, 188; absence 
of it in the French revolution, 190. 
American habit of, 19 1. French 
work on it, by Vallette and St. -Mar- 
tin, 191, note. 

Proclamation of Napoleon, president 
of the republic, preceding the con- 
stitution which became the imperial 
one, 571. 

Property, transmission of, by inheritance, 
101. Unimpeded exchange and ac- 
cumulation, elements of liberty, 102. 
Protected by the Constitution of the 
United States, 103. Basis of repre- 
sentation, 171 andsequ. What is really 
meant by it, 173. Consisted chiefly in 
land, in the middle ages, 174. 

Propter vitam vivendi perdere causas, 

253- 
Proudhon, no one less democratic than 

the people, 369. 
Proverbs, voice of the people, but not 

of God, 406. 
Proxy voting, 177, note. 
Psephisma and Nomos, 353, note. 
Psychical reduplication, 192. 
Public, derivation of the word, 130. 
Public funds must be under control of 

the legislature, 143. 



Public opinion differs from general 
opinion, or passion, 387. 

Public trials," criminal, in Naples, 21. 

Publicity, in justice and legislation, 
saved by England, 21, 127 and sequ. 
What it consists in, 128. Of courts 
of justice, not guaranteed by positive 
law in the United States or England, 
130. First distinctly -authorized for 
the legislature in Massachusetts, 131. 
Public speaking necessary, and the 
ornament of liberty, 133. To read 
speeches in legislatures an evil, 134. 
Hostility of absolute governments to 
publicity, ibid. Interesting historical 
account of the introduction of pub- 
licity in the Senate of the United 
States, by James C. Welling, 135, note. 

Quartering of soldiers, 113 and sequ. 
Queen of England, called an institution, 
3°9- 

Raikes, Charles, Notes on the North- 
western Province, 128, note. 

Rapp, General, his opinion of Napo- 
leon, 155, note. 

Raumer, von, Diplomatic Despatches 
of the Last Century, 352, note. 

Reduplication, psychical, 192; law of, 

Report of the French senate on the 
petitions to change the republic into 
an empire, 588. 

Representation, basis of, 1 7 1. 

Representative government, 164 and 
sequ; differs from deputative govern- 
ment, ibid. Derided, 18; hated by 
Rousseau, ibid. 

Representatives must be free, 180; fre- 
quent election of them, ibid. ; must 
be protected, ibid. Free from arrest, 
182. Possessing the initiative, 183. 
Officers of the United States cannot be 
members of congress, 183. Are they 
national, or merely for their constit- 
uents ? 200. 

Republic and respublica, 42. 

Republic, in 1848, was telegraphed 
from Paris to the departments and 
accepted by return, 393. 

Republique democratique et sociale, 
284. 

Repudiation, 104. Sir A. Alison on 
Repudiation, 104 and note. Repu- 
diation has not been republican, but 
rather monarchical, 105, note. 

Responsible ministers, 159 and sequ. 



620 



INDEX. 



Respublica and republic, 42. 

Right, Petition of, in full, 478 and sequ. 

Rights, Bill of, in full, 492 and sequ. . 

Rights of man, 531 and sequ. 

Ripuarian laws, 454. 

Rivers, international question of free 
navigation of, 266, 267, and note; 
freedom of their navigation peculiar to 
the United States, 266. Difficulty in 
Germany, ibid. ; the Scheldt, 267. 
Magna Charta regarding rivers, ibid. 
Ordinance of 1787 declaring rivers 
forever free, 268. 

Robespierre's " great speech," 275. 

Roman lawyers, their definition of lib- 
erty, 27. Their dictum of the em- 
peror's pleasure, 27 and note. 

Romans did not incline to abstraction, 
307 and sequ. 

Romilly, Sir Samuel, his opinion on 
putting questions to the prisoner, 74; 
on absence of parliamentary practice 
in French revolution, 190; on ethics 
of lawyers, 246. 

Rousseau hates representative govern- 
ment, 18; his views lead to central- 
ized government, ibid. ; against divi- 
sion of power, 151,371 ; his aversion 
to representative government, 283, 
note, 289; his Social Contract only 
establishes unity of power, 371 , his 
Social Contract the text-book of lead- 
ing revolutionists in France, 372. 

Royal republic, England called thus, 
354- 

Ruatan warrant, 177. 

Ruggles, Samuel B., speech on right and 
duty of American Union to improve 
the navigable waters, 1852, and me- 
morial of the canal board and canal 
commissioners, etc., 1858, 268, note. 

Russell, Lord John, on definitions of lib- 
erty, 36. His History of the English 
Government and Constitution, ibid. 

Russia, insecurity of her rulers, 364. 

Sanderson, English casuist, 400, note. 
Sardanapalus, inscription on his tomb, 

339- 

Scheldt, navigation of the, 267. 
Schmidt, I. J., Translation of History 

of the East Mongols by Ssanang 

Ssetsen Changsaidshi, 378. 
Scott, General, his conduct when the 

government of Mexico was offered to 

him, 325 ; his own statement, 325, 

326, note. 
Secret political societies, 135. 



Sejunction of the Netherlands, 337. 

Self-accusation, principle of, in China, 
76. 

Self-development of law, 215 and sequ. 

Self-government, 247 and sequ. His- 
tory of the term, 247, 248, note ; is 
organic, 249. 

Self-government, saved by England, 
21 ; the word belongs exclusively to 
the Anglican race, ibid. 

Self-government, the fittest govern- 
ment for man in his nobler phase, 
252 ; frequently not brilliant, yet 
more efficacious, ibid. ; prevents gov- 
ernment from becoming its own end, 
253; has an element of federalism, 
289. See also De Tocqueville. Does 
not consist in denying power to 
government, 298. Institutional self- 
government, 319. Popular absolutism 
opposite to self-government, 388. 

Self-incrimination, 73. 

Semper ubique, 403, note, and sequ. 

Senatus-consultum, a term smuggled in 
by Napoleon I., 317, note; the whole 
senatus-consultum restoring the em- 
pire, 602. 

Separatism, 170, note. 

Septennial bill, introduced in France 
by Villele, 181 ; in England, ibid. 

Sewell, Rev. William, Christian Poli- 
tics, 309, note. 

Sheriff, killing him by resistance, if his 
warrant is not legal, constitutes man- 
slaughter only, 1 10. 

Silby Estate affair, 95, note. 

Silence made punishable, 93. 

Single-Speech Hamilton. See Hamil- 
ton, W. Gerard. 

Slaves, subjects, and freemen, 26. 

Smith, T. Toulmin, Local Self-Govern- 
ment, 321, note. 

Socialism, 102, note. 

Socrates, called by Lord Mansfield the 
greatest of lawyers, 242. 

Sol dan's History of the Witch-Trials, 
82, note. 

Soldiers. See Ar?7iy, Quartering of 
Soldiers, 1 13 and sequ. 

Sovereignty, what it consists in, 1 52; 
confounded with absolute majority, 
286 ; of the individual, ibid. 

Sparta, favorable view of, by ancient 
philosophers, 43. 

Spartans and Helots, 27. 

Speaker of the English Commons, 185 ; 
under the French charter, 186; in 
America, ibid. 



INDEX. 



621 



Sprenger, Malleus Malefkarum, 403. 
Ssanang Ssetsen Changsaidshi, History 

of the East Mongols, translated by 

Schmidt, 378. 
Stability of institutional government, 

333; 

Standing armies. See Army. 

State, an extensive territory with fixed 
population and independent govern- 
ment, a modern idea, 47. 

Statistics of elections, 418 and sequ. 

St -Just, liberty of a negative character, 

359- 

St. -Martin, French work on parlia- 
mentary procedure, etc., 191, note. 

Story, Judge, on importance of par- 
liamentary procedure, 193; on codi- 
fication, 207. 

Subjects, slaves, and freemen, 26. 

Substitute voting, 177, note. 

Substitutes for representatives, not used 
in the Anglican system, 178. 

Supplies by legislature, always shunned 
by absolute rulers, 273. See Taxa- 
tion. 

Supremacy of the law, 106 and sequ ; 
requires that officers of government 
remain personally answerable, 108; 
only English and Americans have 
this principle, ibid. ; whether the 
principle has been carried too far, 
1 10. 

Suspects, law of, 73, note. 

Suspensive veto, 202, note. 

Sweden, legislature of, 290, note. 

Swiss, dependence of, 57. 

Taxation, right of self-taxation, 103 ; 
Declaration of Independence con- 
cerning taxes without consent, 144; 
merely denying taxes is not liberty, 
ibid. ; appropriations should be short, 
145 ; French imperial constitution 
demands appropriations en bloc, ibid. ; 
history of English supplies, ibid. ; 
civil list, 146. 

Teutonic spirit, its relation to Anglican 
liberty, 53. 

Teutonism and Latinism, 293. 

Theo-democracy of the Mormons, 287. 

Titmann, F. W., Descriptions of the 
Grecian Polities, 31. 

Tocqueville, de, Ancien Regime, 196, 
note ; opinion of, on centralization of 
France and its insecurity, 254; on 
the general character of the French, 
from his Ancien Regime, 254, note. 

Torture, existed veiy late, 457, note. 



Townsend, History of the House of 
Commons, 187. 

Transportation, decreed by the dictator 
in France, 73, note ; expatriation, 
etc., almost always resorted to by 
absolutism, 275. 

Treason. See High Treason, Trial for. 

Trench, Lessons in Proverbs, 406. 

Trial by jury, 232 and sequ; Declara- 
tion of Independence regarding its 
denial, 233 ; some Americans desire 
its abolition, 233, note ; its advan- 
tages, 234 ; Lord-Chancellor Cran- 
worth's opinion on it, 236. See 
Unanimity. 

Trial, Penal. See Penal Trial. 

Tribune, Roman, his veto, 201. 

Troplong, President of the French 
senate, on democracy ascending the 
throne in the Roman Caesars, 377 ; 
remarkable state paper by, 588 and 
sequ. 

Turgot, on Anglican polity, 195 ; 
against two legislative houses, ibid. 

Turks, do not assimilate with conquered 
people, S33- 

Turncoats, Dictionary of, 409, note. 

Tyler, Samuel, author of First Report 
of Commissioners, etc., 196, note; 
writer on philosophy, ibid. 

Unanimity of juries, Hallam's opin- 
ion, 237. Locke against it, 238. 
Duke's laws demanded it in capital 
cases only, 238. 

Unanimity principle in the Netherlands, 
337, note. 

Unarticulated masses, 387. 

Unicameral system, 194, 288, 290. 

Uniformity extending among civilized 
nations, 295 and note. 

Uninstitutional governments insecure, 
363 and sequ. 

Union, the loyalty of an American 
centres in it, 354, note. 

United Slates, important situation of, 
regarding the progress of civiliza- 
tion, 21 ; Constitution of the, 514 
and sequ. 

Unity of power, the Gallican type, 151. 
French pamphlet, ascribed to Napo- 
leon III., in favor of it, ibid. Is 
absolutism, 152. Is brilliant, 153. 
Montesquieu on it, ibid. In democ- 
racy always leads to monarchy; de- 
sired in France ; De Tocqueville on 
it, 196, note. 

Universal suffrage, Rousseau regarding 



622 



INDEX. 



it, 197. In America, 262. Universal 
suffrage alone not the basis of liberty, 
288; called by Girardin the republic, 
355 ; may support absolutism, 382. 

Upper house, organization of it, 198 
and sequ. Lord Brougham's opin- 
ion, 198. 

Usage, in institutional governments, 
348. 

Utopias always founded on commu- 
nism, 44, note. 

Vallette, French work on parlia- 
mentary procedure, etc., 191, note. 

Vaughn, Robert, D.D., The Age of 
Great Cities, 392, note. 

Vertot, History of the Knights of Malta, 
178, note. 

Veto, 200; of the Roman tribune, 201 ; 
of king and president, 201, 202. 

Vice-president of the United States pre- 
sides over the senate, 187. 

Villele, Count, introduced septennial 
bill, 181. 

Vincke, von, reports a lawsuit about a 
square foot of land, 260, note. 

Voget, defensor of the poisoner Gott- 
fried, his opinion on the independ- 
ence of advocates, 240, note. 

Voting, various proposed modes of, 177, 
note. 

Vox populi vox Dei, 398 and sequ. 
Crusades, 399. Unanimity does not 
prove it, 401. French manufacturers 
used it against calico-manufacturing, 
402. Fashion is unanimous, but not 
V. P. V. D., 402 and sequ ; witch - 
trials unanimous, 403. Unanimous 
commercial speculations, 404. The 
worst passions unanimous, 404. "What 
is the voice of the people, 405. Pro- 
verbs, voice of the people, but not 
of God, 406. Pius IX. uses it, ibid. 
Used chiefly in France after the coup 
d'etat, 407. Real lover of liberty 
discards it, ibid. Has no political 
worth, 408. It enfeebles and unfits 
for opposition, ibid. 

Walewski, Count, his treatment of 

British merchants, 58, note. 
Walpole, cabinet member in 1852, on 



the necessity of courts of law deciding 
on doubts arising from royal procla- 
mations, 217. 

War, power of making it, in England, 
147. In the United^States, the power 
belongs to congress, ibid. Where 
the executive has the real power of 
making it, civil liberty does not exist, 
ibid. 

Wardlaw, Judge, opinion on dies non- 
juridicus, 216. 

Warrant, importance of, 62. Constitu- 
tion of the United States on warrants, 

63- 

Warrants, general, 62 and sequ. 

Wealth made compatible with liberty, 
361. 

Webster, on simplicity of despotism, 
154. Necessity of complicated char- 
acter of liberty, ibid. 

Welling, James C., interesting histori- 
cal account of the introduction of 
publicity in the senate of the United 
States, 135, note, and sequ. 

Wellington, does not desire sovereignty, 
325. Obedience of officers to him, 
328, note. 

Western, designating Europeans and 
their descendants, 22, note. 

Wharton, Francis, State Trials of the 
United States, 85. 

W 7 hately, Archbishop, his view of lib- 
erty of conscience, and assistance to 
be given to those who suffer for it, 
98, note. 

William III., declaration of, regarding 
liberty of conscience, 99. 

William of Malmesbury, concerning 
" vox populi vox Dei," 400, note. 

Winthrop, Robert, 131, note. His 
testimony in favor of publicity of 
speaking, 133, note. 

Witch-trials, importance of their study, 
82, note ; unanimous all over Europe, 

4°3- 
Witchcraft a crimen exceptum, 82. 
Workman, ouvrier, claims an aristocracy 

for himself, 382. 
Written constitution. See Enacted 

Constitutions. 

Yorke, Col. Philip. See Muffling. 



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